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A TREATISE 



ON THE 



TREATISE 



ON THE 



CONSTITUTIONAL LIMITATIONS 



WHICH REST UPON 



THE LEGISLATIVE POWER OF THE STATES 
OF THE AMERICAN UNION. 



BY 

THOMAS M. COOLEY, LL.D., 

FORMERLY ONE OF THE JUSTICES OF THE SUPREME COURT OF MICHIGAN, JAY PROFESSOR OF LAW IN THE 
UNIVERSITY OF MICHIGAN, AND CHAIRMAN OF THE INTERSTATE COMMERCE COMMISSION. 



SEVENTH EDITION, 

WITH LARGE ADDITIONS, GIVING THE RESULTS OF 
THE RECENT CASES, 

BY VICTOR H. LANE, 

PROFESSOR OF LAW IN THE UNIVERSITY OF MICHIGAN 




BOSTON: 
LITTLE, BROWN, AND COMPANY. 

1903. 



\ 

Entered according to Act of Congress, in the year 1868, by 

LITTLE, BROWN, AND COMPANY, 
In the Clerk's Office of the District Court of the District of Massachusetts. 

Entered according to Act of Congress, in the years 1871, 1874, 1878, 1883, 1890, by 

LITTLE, BKOWN, AND COMPANY, 
In the Office of the Librarian of Congress, at Washington. 

Copyright, 1896, 
Br THOMAS M. COOLKT. 

Copyright, 1903, 
BY THOMAS B. COOLEY, Trustee. 



All rightt reserved. 
/>> 



UNIVERSITY PRESS JOHN WILSON 
AND SON CAMBRIDGE, U.S.A. 



PREFACE TO THE SEVENTH EDITION. 



AT the request of the heirs of the late Judge Cooley I have 
undertaken the preparation of this edition of the Constitutional 
Limitations. It seemed desirable, in view of all the circumstances, 
that the text of the last edition should stand as the text for this, 
and the work of the present editor has been confined to the bring- 
ing of the book down to date, by the addition of such matter to 
the notes as will fairly present the development of this branch 
of the law since the publication of the last edition. No effort 
has been made to exhaust the cases reported in this period, 
but a judicious selection from such cases has been attempted, 
and the additions appear in the bracketed matter of the notes. 
Where it seemed more appropriate to add the new matter through 
new references from the text, that course has been followed, and 
such matter is found in the single column annotations. The 
other new matter is incorporated in the old notes. The partic- 
ular experience, or better judgment of some, will suggest a dif- 
ferent selection in some cases, but it is hoped that what has been 
done will meet reasonably well the common need. When equally 
desirable on other grounds, cases found in one or the other, and 
sometimes in both, the Lawyers' Reports Annotated and the 
American State Reports have been chosen, that they might be 
available to a greater number. For a like reason, citations to 
the National Reporter System of reports have been added, not 
only for the new cases cited, but for the old cases as well so far 
as found in the Reporters. The editor desires to 'acknowledge 
his obligation to William J. Meyers for his most valuable assist- 
ance in preparing this edition. 

VICTOR H. LANE. 

UNIVERSITY OF MICHIGAN, 

ANN ARBOR, September, 1903. 



116683 




PREFACE TO THE SECOND EDITION. 



IN the Preface to the first edition of this work, the author 
stated its purpose to be, to furnish to the practitioner and the 
student of the law such a presentation of elementary constitu- 
tional principles as should serve, with the aid of its references to 
judicial decisions, legal treatises, and historical events, as a con- 
venient guide in the examination of questions respecting the 
constitutional limitations which rest upon the power of the sev- 
eral State legislatures. In the accomplishment of that purpose, 
the author further stated that he had faithfully endeavored to 
give the law as it had been settled by the authorities, rather 
than to present his own views. At the same time, he did not 
attempt to deny what he supposed would be sufficiently ap- 
parent that he had written in full sympathy with all those 
restraints which the caution of the fathers had imposed upon 
the exercise of the powers of government, and with faith in the 
checks and balances of our republican system, and in correct 
conclusions by the general public sentiment, rather than in re- 
liance upon a judicious, prudent, and just exercise of authority, 
when confided without restriction to any one man or body of 
men, whether sitting in legislative capacity or judicial. In this 
sympathy and faith, he had written of jury trials and the other 
safeguards to personal liberty, of liberty of the press, and of 
vested rights ; and he had also endeavored to point out that 
there are on all sides definite limitations which circumscribe the 
legislative authority, independent of the specific restrictions 
which the people impose by their State constitutions. But while 
not predisposed to discover in any part of our system the rightful 
existence of any unlimited power, created by the Constitution, 



viii PREFACE. 

neither on the other hand had he designed to advance new 
doctrines, or to do more than state clearly and with reasonable 
conciseness the principles to be deduced from the judicial 
decisions. 

The unexpected favor with which the work has been received 
having made a new edition necessary, the author has reviewed 
every part of it with care, but without finding occasion to change 
in any important particular the conclusions before given. Fur- 
ther reflection has only tended to confirm him in his previous 
views of the need of constitutional restraints at every point 
where agents are to exercise the delegated authority of the 
people ; and he is gratified to observe that in the judicial tribu-. 
uals the tendency is not in the direction of a disregard of these 
restraints. The reader will find numerous additional references 
to new cases and other authorities ; and some modifications have 
been made in the phraseology of the text, with a view to clearer 
and more accurate expression of his views. Trusting that these 
modifications and additions will be found not without value, he 
again submits his work " to the judgment of an enlightened and 
generous profession." 

THOMAS M. COOLEY. 
UNIVERSITY OF MICHIGAN, 

ANN ARBOR, July, 1871. 



TABLE OF CONTENTS. 



CHAPTER I. 

DEFINITIONS. 

Page 

Definition of a state, nation, people, sovereignty, and sovereign 

state 3 

What sovereignty consists in 3, 4 

Apportionment of sovereignty in America 4 

Definition of constitution and constitutional government . . . 4, 5 

Of unconstitutional law 5 

The will of the people the final law 6 



CHAPTER II. 

THE CONSTITUTION OF THE UNITED STATES. 

What the United States government the successor of; Colonial 

confederacies 7 

The States never in a strict sense sovereign 8 

The Continental Congress 8, 9 

Limitations upon its power ; the Articles of Confederation, and 

the supersession thereof by the Constitution 9 

Adoption of the Constitution by North Carolina, Rhode Island, 

and the New States 9, 10 

United States government one of enumerated powers .... 11 
General purpose of this government . ......... 11 

Powers conferred upon Congress 11-13 

Powers under the new amendments 13-18 

Executive and judicial power of the nation 19-23 

Constitution, laws, and treaties of United States to be supreme ; . 
final decision of questions under, to rest with national 

judiciar}* 24 

Removal of causes from State courts ; decisions of State courts 

to be followed on points of State law 24-35 

Restrictions upon State action 35-36 



X TABLE OF CONTENTS. 

Page 

Protection to privileges and immunities of citizens .... 15-36 

Extradition of fugitives from justice 37, 38 

Faith and credit secured to records, &c . . 38-41 

Guaranty of republican government 42-45 

Implied prohibitions on the States 45, 46 

Reservation of powers to States and people ...... 46 

Construction of national bills of rights 46,47 

Statutes necessary to jurisdiction of national courts . . . 47, 48 



CHAPTER III. 

THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS. 

State governments in existence when Constitution of United 

States adopted . 49 

Common law in force ; what it consists in 49-53 

English and Colonial legislation 53, 54 

Colonial charters and revolutionary constitutions .... 55 

Constitutions of new States 55, 56 

Sovereignty of the people 56-59 

Who are the people, in a political sense 57 

Proceedings in the formation and amendment of constitutions 58-69 
Restraints imposed thereon by Constitution of the United States 62 

What generally to be looked for in State constitutions . . . 64-68 

Rights are protected by, but do not come from them ... 69 

CHAPTER IV. 

CONSTRUCTION OF STllE CONSTITUTIONS. 

Interpretation and construction 70 

Who first to construe constitutions 71-77 

Final decision generally with the courts 76-78 

The doctrine of res adjudicata and stare decisis 79-88 

Construction to be uniform 88, 89 

The intent to govern 89-91 

The whole instrument to be examined 91, 92 

Effect to be given to the whole 91, 92 

Words to be understood in their ordinary meaning .... 92, 93 

Common law to be kept in view 94, 95 

Words sometimes employed in different senses 95-97 

Operation of laws to be prospective 97 

Implied powers 98 99 

Consideration of the mischief to be remedied .... 100 



TABLE OF CONTENTS. xi 

Page 

Proceedings of Constitutional Convention may be examined . 101, 102 
Force of contemporaneous and practical construction . . . 102-107 

Unjust provisions not invalid -108, 109 

Duty in case of doubt on constitutional questions .... 109 

Directory and mandatory provisions 109-119 

Constitutional provisions are imperative 114-119 

Self-executing provisions 119-122 

Danger of arbitrary rules of construction 123 



CHAPTER V. 

THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAT EXERCISE. 

Power of American legislatures compared to that of British 

Parliament 124-129 

Grant of legislative power is grant of the complete power . . 128 

But not of executive or judicial power 129-133 

Definition of legislative and judicial authority 131-134 

Declaratory statutes 134-140 

Statute setting aside judgments, granting new trials, &c. . . 136-140 

Recitals in statutes do not bind individuals 139 

Statutes conferring power on guardians, &c. , to sell lands . 140-147 
Statutes which assume to dispose of disputed rights .... 147-151 
Statutes validating irregular judicial proceedings . . . .150,151 

Legislative divorces 152-157 

Legislative encroachments upon executive power .... 157-162 

Legislative power not to be delegated 163-169 

Conditional legislation 169-173 

Local option laws 173, 174 

Irrepealable laws not to be passed 174-176 

Territorial limitations upon State legislative authority . . . 176-181 

Inter-state comity 178-181 

Other limitations by express provisions ....... 181-184 

Limitations springing from nature of free government . . . 182-185 

CHAPTER VI. 

THE ENACTMENT OF LAWS. 

Importance of forms in parliamentary law 186,187 

The two houses of the legislature 187, 188 

Differences in powers of 188 

Meetings and adjournments 188 



Xll TABLE OF CONTENTS. 

Page 

Contested elections, rules of proceeding, punishing disorderly 

behavior 189, 190 

Contempts 191 

Privileges of members 192 

Legislative committees 193 

Journal of proceedings 193-195 

Corrupt contracts to influence legislation 196 

Counsel before legislature ; lobby agents 196 

The introduction and passage of bills 197-199 

Evasions of constitutional provisions 199 n. 

Three readings of bills 199,200 

Yeas and nays 201 

Vote required for the passage of a bill 201 

Title of statutes 202-214 

Amendatory statutes 214-217 

Signing of bills by presiding officers 218 

Approval of bills by the governor 218-221 

Other legislative powers of the governor 222 

When acts to take effect 222-226 

CHAPTER VII. 

THE CIRCUMSTANCES UNDER WHICH A LEGISLATIVE ACT MAT BE 
DECLARED UNCONSTITUTIONAL. 

Authority to declare statutes unconstitutional a delicate one . 227-229 

Early cases of such declaration 229 n. 

Will not be done by bare quorum of court 230 

Nor unless a decision upon the point is necessary .... 231 

Nor on objection by a party not interested 232 

Nor solely because of unjust or oppressive provisions . . . 232-237 
Nor because conflicting with fundamental principles . . . 237-239 
Nor because opposed to the spirit of the constitution . . . 239-241 

Extent of legislative power 242 

Difference between State and national governments .... 242 

A statute in excess of legislative power void 243-246 

Statutes invalid as encroaching on executive or judicial authority 244 

Or conflicting with the bill of rights 245 

Legislative forms are limitations of power 245,246 

Statutes unconstitutional in part 246-250 

Constitutional objection may be waived 250-252 

Judicial doubts on constitutional questions 252-257 

"K Inquiry into legislative motives not permitted 257-259 

Consequences if a statute is void 259, 260 



TABLE OF CONTENTS. Xlll 

CHAPTER VIII. 

THE SEVERAL GRADES OF MUNICIPAL GOVERNMENT. 

Page 

The American system one of decentralization 261-264 

State constitutions framed in reference to it 264 

Local government may be delegated to citizens of the mu- 
nicipality 264, 265 

Legislative control of municipalities 265-269 

Powers of public corporations 270 

Strict construction of charters 271, 272 

Contracts ultra vires void 272-274 

Must act through corporate authorities 274-276 

Corporations by prescription and implication ...... 276-278 

Municipal by-laws 278-292 

Delegation of powers by municipality not admissible . . . 293, 294 
Irrepealable municipal legislation cannot be adopted . . . 295-299 

Presumption of correct action 300-306 

Power to indemnify officers 306-309 

Powers to be construed with reference to purposes of their 

creation 309-311 

Authority confined to corporate limits 312,313 

Municipal subscriptions to works of internal improvement . 312-325 

Negotiable paper of corporations 320-325 

Municipal military bounties 326-333 

Legislative control of municipal taxation 334-342 

Legislative control of corporate propert}' 342-347 

Towns and counties 347-355 

Not liable for neglect of official duty 354, 355 

Different rules govern chartered corporations 355, 356 

In what respect the charter a contract 356-362 

Validity of corporate organizations not to be questioned col- 
laterally 363, 364 

The State sometimes estopped from questioning 364 n. 

CHAPTER IX. 

PROTECTION TO PERSON AND PROPERTY UNDER THE CONSTITUTION 
OF THE UNITED STATES. 

Bill of Rights, importance of 365-367 

Addition of, by amendments to national Constitution . . . 367, 368 

Bills of attainder 368-372 

Ex post facto laws 372-383 



XIV TABLE OF CONTENTS. 

Page 

Laws impairing the obligation of contracts 383-416 

What charters are contracts 391-394 

Contracting away powers of sovereignty 395-401 

Grant of exclusive privileges 401,402 

Changes in the general laws 402, 403 

Obligation of a contract, what it is 403-406 

Modification of remedies always admissible 406-416 

Appraisal laws 412 

Stay laws, when void 414 

Laws taking away substantial rights 415 

Validating imperfect contracts 415,416 

State insolvent laws 416,417 

The thirteenth and fourteenth amendments 417, 418 

CHAPTER X. 

THE CONSTITUTIONAL PROTECTIONS TO PERSONAL LIBERTY. 

Villeinage in England 419-422 

In Scotland 422,423 

In America 423 

Impressment of seamen 424 

Unreasonable searches and seizures 424-429 

Every man's house his castle 425-429 

Search warrants 429-434 

Inviolability of papers and correspondence 432-434 

Quartering soldiers in private houses 435 

Criminal accusations, how made 436, 437 

Bail to persons accused of crime 437-439 

Prisoner standing mute " 439 

Trial to be speedy 440 

To be public 441 

Not to be inquisitorial 442 

Prisoner's statement and confessions 443-449 

Confronting prisoner with witnesses 450-452 

Prisoner to be present at trial 452 

Trial to be by jury 453-465 

Number of jurors '. .454-459 

Right of challenge 459 

Jury to be of the vicinage 459 450 

Verdict to be unanimous and free 460 

Instructions of the judge, how limited 460-462 

Power of jury to judge of law 461-465 

Accused not to be twice put in jeopardy 466-470 



TABLE OF CONTENTS. XV 

Page 

Excessive fines and cruel and unusual punishments .... 471-474 

Right to counsel 474-482 

Protection of professional confidence 477, 478 

Duty of counsel 478-482 

Whether counsel to address the jury on the law 480, 481 

Punishment of misconduct in attorne}'s 481, 482 

Writ of habeas corpus 483-497 

Legal restraints upon personal liberty 484-491 

Necessity of Habeas Corpus Act 489,490 

What courts issue the writ 491-494 

General purpose of writ, and practice upon 495-497 

Right of discussion and petition 497,498 

Right to bear arms 498, 499 

Jealousy of standing armies 498, 499 

CHAPTER XI. 

OF THE PROTECTION OF PROPERTY BY THE "LAW OF THE LAND." 

Magna Charta, chap. 29 500 

Constitutional provisions insuring protection ' ' by the law of 

the land" 500 n. 

Meaning of " due process of law " and " law of the land" . 502-508 

Vested rights not to be disturbed 508 

What are vested rights 509-520 

Interests in expectancy are not 511, 512 

Legislative modification of estates 512,513 

Control of rights springing from marriage 513-515 

Legislative control of remedies 515-518 

Vested rights of action are protected 517 

Confiscation of rights and property 518-520 

Statutes of limitation 520-524 

Alteration in the rules of evidence 524-528 

Retrospective laws 528-546 

Curing irregularities in legal proceedings 530-533 

Validating imperfect contracts 535-546 

Pendency of suit does not prevent healing act 543 

What the healing statute must be confined to 544-546 

Statutory privilege not a vested right 546-548 

Consequential injuries from changes in the laws 548, 549 

Sumptuary and other like laws 549, 550 

Betterment laws 550-553 

Unequal and partial legislation 554-575 

Local laws may vary in different localities 554-557 



xvi TABLE OF CONTENTS. 

Page 

Suspension of general laws 558-562 

Equality the aim of the law 562-564 

Strict construction of special grants 564-567 

Privileges and immunities of citizens 567-575 

Judicial proceedings void if jurisdiction wanting 575 

What constitutes jurisdiction 575 

Consent cannot confer it 575, 576 

Jurisdiction in divorce cases 577-582 

Necessity for process 579-585 

Process by publication 582-585 

Courts of general and special jurisdiction 585, 586 

Effect of irregularities in judicial proceedings 587, 588 

Judicial power not to be delegated 589 

Must be exercised under accustomed rules 589-592 

Judge not to sit in his own cause 592-595 

CHAPTER XII. 

LIBERTY OP SPEECH AND OF THE PRESS. 

Detection of, by the Constitution of the United States . . 596 

State constitutional provisions 596 . 

Not well protected nor defined at common law 599 

Censorship of the press ; publication of proceedings in Parlia- 
ment not formerly suffered 599, 600 

Censorship of the press in America 600, 601 

Secret sessions of public bodies in the United States . . . 601, 602 

What liberty of the press consists in 602-605 

Common-law rules of liability for injurious publications . . 605-609 

Cases of privileged communications 609-612, 646 n. 

Libels on the government, whether punishable 612-615 

Sedition law 613 

Farther cases of privilege ; criticism of officers or candidates 

for office 616-628 

Petitions and other publications in matters of public concern . 617, 618 

Statements in course of judicial proceedings 629-631 

by witnesses 629 

by jurors 629, 630 

by complainant, &c 630, 631 

by counsel 631-633 

Privileges of legislators 634-636 

Publication of privileged communications through the press . 636-640 
Accounts of judicial proceedings, how far protected .... 636-640 
Privilege of publishers of news 640-650 



TABLE OF CONTENTS. 

Page 

Publication of legislative proceedings 650-652 

The jury as judges of the law in libel cases 652-655 

Mr. Fox's Libel Act 653-655 

" Good motives and justifiable ends," burden of showing is on 

defendant 656-658 

What is not sufficient to show 657 n. 



CHAPTER XIII. 

RELIGIOUS LIBERTY. 

Care taken by State constitutions to protect 659 

Distinguished from religious toleration 660-662 

What it precludes 663-668 

Does not preclude recognition of superintending Providence 

by public authorities 668-669 

Nor appointment of chaplains, fast-da}^, &c 669 

Nor recognition of fact that the prevailing religion is Christian 669 
The maxim that Christianity is part of the law of the land . 670 

Punishment of blasphemy 671-673 

And of other profanity , 674 

Sunday laws, how justified 674-676 

Respect for religious scruples 676 

Religious belief as affecting the competency or credibility of 

witnesses 676, 677 

CHAPTER XIV. 

THE POWER OF TAXATION. 

Unlimited nature of the power 678-686 

Exemption of national agencies from State taxation . . . 682-686 
Exemption of State agencies from national taxation . . . 685, 686 
Limitations on State taxation by national Constitution . . . 686, 687 

Power of States to tax subjects of commerce 687-691 

Discriminations in taxation between citizens of different States 693 

Elements essential to valid taxation 695-751 

Purposes must be public 696-705 

Legislature to judge of purposes 698-705 

Unlawful exactions 702-705 

Necessity of apportionment 705-713 

Taxation with reference to benefits in local improvements . . 713737 
Local assessments distinguished from general taxation . . 715-717 
Apportionment of the burden in local assessments .... 718-737 

6 



XViii TABLE OF CONTENTS. 

Page 

Taxation must be uniform throughout the taxing districts . . 722-737 

Road taxes in labor 737 

Inequalities in taxation inevitable 737, 738 

Legislature must select subjects of taxation 739 

Exemptions admissible 739-744 

Constitutional provisions forbidding exemptions 743, 744 

Legislative authority requisite for every tax 744-748 

Excessive taxation 747, 748 

The maxim de minimis lex non curat in tax proceedings . . 748 

What errors and defects render tax sales void 748-750 

Remedies for collection of taxes . 748-751 



CHAPTER XV. 

THE EMINENT DOMAIN. 

Ordinarj* domain of State distinguished from eminent domain 752, 753 

Definition of eminent domain 753, 754 

Not to be bargained away ; general rights vested in the States 755 

How far possessed by the general government 755, 756 

What property subject to the right 756-759 

Legislative authority requisite to its exercise 759. 760 

Strict compliance with conditions precedent necessary . . . 760-763 
Statutes for exercise of, not to be extended by intendment . 762, 763 

Purpose must be public 763-766 

What is a public purpose 766-775 

Whether milldams are 771-773 

Question of, is one of law 774, 775 

How property to be taken 775, 776 

Determining the necessity for 777, 778 

How much may be taken 779-781 

What constitutes a taking 781-810 

Consequential injuries do not 781-788 

Appropriation of highway to plank road or railroad .... 788-808 

Whether the fee in the land can be taken 808-810 

The damaging of property 810-812 

Compensation to be made 812, 826-828 

Time of making 813-817 

Tribunal for assessing 817, 818 

Principle on which it is to be assessed 819-828 

Allowance of incidental injuries and benefits 823-828 

What the assessment covers 825, 826 

Action where work improperlj* constructed 826 



TABLE OF CONTENTS. 
CHAPTER XVI. 

THE POLICE POWER OF THE STATES. 

Page 

Definition of police power 829 

Pervading nature of 829-831 

Power where vested 831, 832 

Exercise of, in respect to charter contracts 833-844 

License or prohibition of sales of intoxicating drinks . . .845-851 
Payment of license fee to United States gives no right in oppo- 
sition to State law 851 

Quarantine regulations and health laws 851-855 

Inspection laws ; harbor regulations 855 

Distinction between proper police regulation and an interfer- 
ence with commerce 856 

State taxes upon commerce 857-859 

Sunday police regulations 859 

Regulation of highwa}'s by the States 860, 861 

Control of navigable waters 861-868 

What are navigable 861, 862 

Congressional regulations of 863 

Monopolies of, not to be granted by States 864 

Power in the States to improve and bridge 865, 866 

And to establish ferries and permit dams 867 

Regulation of speed of vessels 867 

Levees and drains 868 

Regulation of civil rights and privileges 869 

Regulation of business charges 870-877 

Destruction of buildings to prevent spread of fire .... 878 
Establishment of fire limits and wharf lines ; abatement of nui- 
sances, &c 878-883 

Other State regulations of police 884-891 

Power of States to make breach thereof a crime .... 890 



CHAPTER XVII. 

THE EXPRESSION OP THE POPULAR WILL. 

People possessed of the sovereignty, but can only exercise 

it under legal forms 892 

Elections the mode 893-898 

Qualifications for office 894 W.-896 n. 

Officers de facto and dejure 896-899 



XX TABLE OF CONTENTS. 

Page 

Who to participate in elections ; conditions of residence, pres- 
ence at the polls, &c 899-903 

Residence, domicile, and habitation defined 903-907 

Registration of voters 905-907 

Other regulations 907, 908 

Preliminary action by authorities, notice, proclamation, &c. . 908, 909 

Mode of voting ; the ballot 910 

Importance of secrecy ; secrecy a personal privilege . . .911-913 

Ballot must be complete in itself 914 

Parol explanations by voter inadmissible 914 

Ballot must not contain too many names 915 

Names on ballot should be full 916 

Abbreviations, initials, &c 916, 917 

Erroneous additions do not affect ' ' 917 

Evidence of surrounding circumstances to explain ballot . . 919, 920 

Boxes for different votes; errors in depositing 921 

Plurality to elect 892 w., 921, 922 

Freedom of elections ; bribery 922 

Treating electors ; service of process 923 

Betting on elections, contracts to influence them, &c. . . . 924 

Militia not to be called out on election days 924, 925 

Electors not to be deprived of votes 926, 927 

Liability of officers for refusing votes 927, 928 

Elector's oath when conclusive 927, 928 

Conduct of election 928 

Effect of irregularities 928-930 

Effect if candidate is ineligible 931 

Admission of illegal votes 932, 933 

Fraud, intimidation, &c 932-934 

Canvass and return of votes ; canvassers act ministerially . . 934-937 
Contesting elections ; final decision upon, rests with the courts 937-944 
Canvasser's certificate conclusive in collateral proceedings; 

courts may go behind 939-944 

What proofs admissible 940-944 

Whether qualification of voter may be inquired into by courts 942-944 



INDEX 



945 



TABLE OF CASES. 



Abbett v. Com'rs Johnson Co. 305, 355 

Abbott v. Commonwealth 516 

v. Kansas City, &c. Co. 757 

v. Lindenbower 526, 527, 645 

v. Nat'l Bk. of Commerce 21, 28 

Abell v. Douglass 62 

Abels v. Supervisors of Ingham 896 

Abendroth v. Greenwich 266 

p. Manhattan Ry. Co. 799, 801, 815, 

828 

Abercrombie c. Baxter 412 

Aberdeen v. Saunderson 343 

v. Sykes 274, 322 

Aberdeen Academy v. Aberdeen 347 

Abington v. North Bridgewater 904 

Ableman v. Booth 4, 493 

Abraham v. Casey 32 

Ackerman v. Jones 639 

Ackley School Diet. v. Hall 206 

A Coal Float v. Jeffersonville 282 

Adams, Ex parte 453 

v. Adams 42, 497 

v. Beale 626 

v. Beloit 182 

v. Beman 743 

v. Brenan 274 

p. Chicago, &c. R. R. Co. 299, 791, 

802, 828 

v. Coulliard 850 

v. Cowles 586 

v. Field 86 

v. Hachett 400 

p. Howe 128, 185, 237, 254 

v. Palmer 156, 402, 403 

v. People 177 

v. Rankin 607 

t'. Rivers 808 

v. Shelbyville 731 

v. SomerviMe 725 

v. State 262, 468 

v. Tonnella 718 

v. Vose 496 

v. Wiscasset Bank 348, 352, 356 

Adams Co. v. Burlington, &c. R. R. 

Co. 30, 81, 86 

v. Quincy 695, 718, 731, 741 

Adams Exp. Co. v. Kentucky 692 

v. Ohio State Aud. (165 U. S.) 691 

p. Ohio State Aud. (166 U. S.) 692 

Adamson v. Davis 624 

Addle v. Davenport 900 

Addoms v. Marx 6'28 

Addy v. Janesville 304 



Page 
Addyston Pipe & S. Co. v. United 

States 687 

Ad Hine, The, p. Trevor 45 

Adirondack Ry. Co. v. New York 386 
v. State ' 386 

Adkins v. Richmond 690, 694, 853 

Adler p. Whitbeck 709, 749 

Adsit v. Sec'y of State 909 

Agee v. Smith 877 

Ah Fook, Matter of 607 

Ah Foy, Ex parte 287 

Ah Jow, In re 493 

Ah Kow v. Nunan 557 

Ah You, Re 290 

Ahl v. Gleim 331, 533 

A'Hern p. Iowa S. A. Society 305 

Aikman v. Edwards 64 

Aitken v. Wells River 300, 754, 878 

Akron v. Chamberlain 296 

Alabama, &c. Ins. Co. v. Boykin 539 

Alabama, &c. R. R. Co. v. Kenney 398 
Alabama G. S. Ry. Co. v. Hill 424 

Alabama R. R. Co. v. Kidd 316 

Albany p. Sikes S04 

Albany Co. Suprs. v. Stanley 232 

Albany Street, Matter of 232, 251, 508, 
764, 778, 780, 815, 823 
Albertson P. Landon 149, 528 

Albrecht p. State 204, 205, 709, 713 

Albrittin p. Huntsville 356 

Albuquerque Nat'l Bk. p. Pera 712, 749 
Alcock v. Cooke 609 

Alcorn v. Hamer 166, 736 

Alderman v. School Directors 262 

Alderson v. Com'rs 936 

Aldrieh p. Aldrich 193 

p. Cheshire R. R. Co. 783, 819, 826 
p. Kinney 41, 42, 583 

p. Printing Co. 622 

p. Sharp 689 

Aldridge v. Railroad Co. 629, 777 

p. Williams 101 

Alexander v. Alexander 614, 605 

p. Baltimore 728 

p. Bennett 129 

v. McKenzie 388 

p. Milwaukee 296, 781, 786 

p. Mt. Sterling 358 

p. People 253 

p. State 687 

p. Taylor 82 

v. Worthington 89, 100 

Alexandria & F. Ry. Co. P. Alexan- 
dria, &c. R. R. Co. 807 



XX11 



TABLE OF CASES. 



Page 

Allbyer v. State 97, 629 

Alleghany City v. McClurkan 
Allegheny Co. v. Gibson 
Allegheny County Home's Case 

2\2t 

Allen v. Aldrich 484 

v. Archer 631 

v. Armstrong 626, 627, 545 

v. Baltimore & O. R. R. Co. 
v. B'd of State Aud. 130 

v. Cape Fear, &c. Ry. Co. 606 

v. Chippewa Falls 

v. Crofoot 629 

v. Dist. of Col. 

v. Drew 730, 734 

v. Georgia 

v. Glynn 900 

v. Jay 311, 316, 697, 700, 705, 772 
v. Jones 760 

v. La Fayette 272 

v. Louisiana 249 

r. McKeen 360 

v. Pioneer Press Co. 660, 650 

v. Southern P. Ry. Co. 28 

v. Staples 430 

v. State 458 

v. Taunton 812 

v. Tison 209 

v. Wyckoff 20 

Allen Co. Commissioners v. Silvers 248, 

253 

v. Simons 12, 680 

Allentown v. Henry 728 

Alley v. Edgecomb 327 

Allgeyer r. Louisiana 12, 179, 833, 837 
Allison, Re 469 

t7. Blake 99 

Allor v. Auditors 231, 689 

Alloway v. Nashville 826 

Almy v. California 687 

Alston v. Newcomer 904 

Altenburg v. Commonwealth 845, 885 
Alter's Appeal 641, 558 

Altgelt v. San Antonio 297, 749 

Altnow v. Sibley 355 

Alton v. Hope 363 

Alton Woods, Case of 609 

Altvater v. Baltimore 301 

Alvin v. Collin 924 

Alvord v. Collin 749 

Amann v. Damm 612 

Amberg v. Rogers 626 

Atnboy v. Sleeper 280 

Ambrose v. State 280 

Amenia v. Stamford 737 

American Bk. N. Co. v. N. Y. E. Ry. 

Co. 803 

American Exp. Co. v. Michigan 22 

v. People 879 

American Fertilizing Co. v. Bd. of 

Ag. 686 

American Fur Co. r. United States 850 
American Print Works v. Lawrence 757, 

878 

American Pub. Co. v. Fisher 458, 460 
American R. Tel. v. Hiss 298 



Page 

American Ref. Tr. Co. v. Hall 691 

American River Water Co. v. Am*- 

den 863 

American Sugar R. Co. v. Louisiana 16, 

663 

American S. S. Union v. Taylor 741 

American Telph. & Telne. v. Pearce 804 
v. Smith 787 

Americus v. Mitchell 

v. Perry 65, 24 

Ames v. Boland 576 

v. Lake Superior R. R. Co. 394, 817, 

836 
v. Port Huron Log Driving and 

Booming Co. 619, 594 

Amey v. Mayor, &c. 167 

Amis v. Smith 
Amory >;. Keokuk 
Amoskeag Mfg. Co. v. Concord 
Ampt. v. Cincinnati 

Amsbaugh v. Exchange Bank 683 

Amsterdam Water Com'rs, Matter of 809 
Amy . Selma 267, 268 

. Smith 37 

Anderdon v. Burrows 829 

Anderson v. Dunn 190, 191 

v. East 302 

v. Hill 213, 327, 703 

v. Jackson 84 

v. Kerns Draining Co. 717, 735, 770 
v. Louisville 16 

v. Louisville & N. Ry. Co. 869 

v. M. F. As. Co. 164 

v. Millikin 564 

. O'Conner 272 

v. State 486 

17. Wellington 289 

v. Whatcomb Co. 121 

Anderton v. Milwaukee 674 

Andes v. Ely 322 

Andover v. Grafton 320 

Andres v. Wells 644 

Andrew v. Bible Society 670, 672 

Andrews, Ex parte 859 

r. Andrews 579 

v. Beane 138, 544, 546 

v. Beck 589 

v. Carney 133 

r. Insurance Co. 279 

v. Page 154, 634 

v. People 217 

v. Russell 537 

v. Simms 478 

v. State 128, 237, 452, 499 

v. St. Louis Tunnel Co. 224 

v. Swartz 22 

r. Wheaton 576 

Andrus v. Board of Police 654 

Angle t7. Chicago M. & St. P. Ry. Co. 517 
Annable v. Patch 513 

Annapolis v. Harwood 194 

v. State 207 

Annis v. People 459 

Anniston, &c. R. R. Co. v. Jackson- 
ville &c. R. R. Co. 807 
Anonymous 515 



TABLE OF CASES. 



XX111 



Anthony v. State 452 

Antisdel v. Chicago, &c. R. R. Co. 841 
Antoni v. Greenliow 24, 406 

v. Wright 232, 403 

Antonio v. Gould 209, 211 

Arayo v. Currell 178 

Arbegust v. Louisville 720 

Arbenz r. Wheeling & H. Ry. Co. 828 
Arctander, Matter of 481 

Argentine v. Atchison, T. & S. F. 

Ry. Co. 298 

Arimond v. Green Bay Co. 757, 783, 787 

Arkadelphia v. Windham 356 

Arkansas V. L., &c. Co. v. Mann 590 

Armington v. Barnet 395, 679, 757, 777 

Arms v. Ayer 164, 558 

Armstrong v. Harshaw 42, 583 

v. Jackson 246, 553 

v. Mayor 205 

v. State 459, 464 

v. United States 12 

Arnold, Ex parte 911 

v. Arnold . 677 

v. Davis 903 

. Decatur 760, 777 

v. Kelley 137, 560 

17. McKellur 220 

v. Mundy 862 

Arnson v. Murphy 23 

Aron v. Wausau 302, 306 

Arrington v. Arrington 44 

Arrowsmith v. Burlingim 503 

v. Harmoning 30 

Arundel o. McCulloch 863 

Asberry v. Roanoke 731 

Ash v. Cummings 773, 814, 817 

v. People 283, 857, 887 

Ashbrook v. Commonwealth 853 

r. Schaub 182 

Ashcroft v. Bourne 587 

Asher v. Louisville, &c. R. R. Co. 823 

v. Texas 694 

Ashland & C. S. Ry. Co. v. Faulkner 803 

Ashley v. Peterson 430 

v. Port Huron 304, 363, 786, 787 

v. Ryan 397 

Ashuelot R. R. Co. v. Elliott 144, 394, 412 

Aspinwall v. Commissioners 266 

Astley v. Younge 629 

Astor v. New York . 531 

A strom v. Hammond 259 

Atchinson & N. Ry. Co. v. Boerner 827 

Atchison v. Bartholow 266 

v. King 363 

Atchison, &c. R. R. Co. v. Betts 52 

Atchison & Nebraska R. R. Co. v. 

Baty 528, 841 

Atchison, T. & S. F. Ry. Co. v. Camp- 
bell 569, 874 
v. Clark 558 
v. Howe 706 
v. Matthews 15, 571 
Athearn v. Independent District 262 
Athens v. Georgia R. R. Co. 291 
Atherton v. Atherton 44 
Atkins v. Com. 474 



Atkins v. Phillips 

v. Plimpton 

v. Randolph 
Atkinson v. Bemis 

v. Detroit Free Press 

v. Doherty 

v. Dunlap 



Page 

288 
685 

336, 360 
278 
646 
510 
137, 521, 529 



v. Goodrich Transp. Co. 284 

v. Marietta & Cincinnati R. R. Co. 762 
Atlanta v. Central R. R. Co. 825 

v. First Pres. Ch. 718, 741 

v. Green 811, 812 

v. Stein 274, 291 

v. Warnock 303 

v. Word 812 

Atlantic Ex. Co. v. Wilmington & W. 

Ry. Co. 873 

Atlantic & Ohio R. R. Co. v. Sulli- 

vant 762 

Atlantic & P. Ry. Co. v. Mingus 149 
Atlantic, &c. Telegraph Co. v. Chi- 
cago, &c. R. R. Co. 316, 787 
Atlantic De Laine Co. v. Mason 275 
Attaway v. Cartersville 305 
Atty.-Gen. v. Barstow 935, 937, 939 
v. Boston & A. Ry. Co. 574, 875 
v. Brown 158, 217, 259 
v. Brunst 86 
v. Cambridge 269 
v. Chicago, &c. R. R. Co. 238, 395, 
838, 839, 873 

v. Common Council of Detroit 121, 
894, 895 

v. Detroit 908 

v. Detroit & Erin Plank Road Co. 89, 

92 

v. Eau Claire 55, 256, 700 

v. Ely 915, 916, 919, 929, 935, 937, 941 
v. Exeter 350 

v. Geerlings 661 

v. Jochem 159, 574 

v. Joy 201, 209 

t>. Marr 168 

v. Marston 895 

v. Morris & Essex R. R. Co. 789 

v. New York 295 

v. Old Colony Ry. Co. 572 

v. Railroad Companies 217, 394, 875 
v. Railway Co. 802 

v. Rice 194, 205 

v. Rogers 75, 134 

v. Supervisors of Lake Co. 259 

v. Supervisors of St. Clair 926 

v. Weimer 166, 195 

r. Williams 879 

v. Winnebago, &c. Plank Road 

Co. 725 

Atwater v. Woodbridge 353, 395 

Atwill v. Mackintosh 610 

Atwood v. Lincoln 275 

v. Welton 677 

Auburn v. Union Water P. Co. 

Auditor v. Holland 163 

Auditor Gen. v. University 740 

Auditor of State v. Atchison, &c 

R. R. Co. 130 



XXIV 



TABLE OF CASES. 



Page 

Augusta r. Burum 296 
17. Mackey 
v. Murphy 
v. Sweeney 

Augusta, &c. R. R. Co. v. Renz 

Augusta Bank v. Augusta 407, 738 
Augusta Evening News v. Radford 628 

Augusta Factory c. Augusta 740 
Augustin t7. Eggleston 

Auld v. Butcher 406, 623 

v. Walton 
Aurora v. Heed 

Aurora City v. West 80, 167 

Austen v. Miller 35 

Austin el a/., In re 481 

v. Augusta T. Ry. Co. 810, 811 

. Coggeshall 310 

t7. Gas Co. 740 

v.Murray 281,285,291,292 

v. Tennessee 687, 848 

Austine 17. State 445 

Avent-Beattyville Coal Co. v. Com. 877 

Avery v. Tyringham 

Avis v. Vineland 291 

Axtell v. Gerlach 748 

Aycock r. Martin 414 

Ayers, In re 24, 495 

r. Chicago Title T. Co. 709 

v. Grider 606 

r. Moan 925 

Aylesworth v. St. John 631 

Aynette v. State 499 

Ayres t7. Methodist Church 670, 673 



B. 



Babcock t?. Buffalo 362, 884 

t7. Camp 80 

Baccigalupo v. Commonwealth 437 

Bachelder v. Moore 454 

Backus i: Detroit 666 

v. Fort St. U. D. Co. 22, 32, 814 

v. Lebanon 392, 395, 589 

Bacon v. Arthur 867 

. Callender 616, 643, 553 

t7. Fisher 478 

v. Mich. Cent. R. R. Co. 605, 612 

t7. Texas 31, 36 

i7. Wayne County 477 

. York County 986 

Bacot, Ex parte 764 

Bagg t7. Wilmington C. & A. Ry. 

Co. 845 

Baprp's Appeal 138, 521 

Baiznall v. London & N. W. R. Co. 819 

Bahen, Ex parte 282 

Bailey v. Boston & P. Ry. Co. 827 

v. Commonwealth 109 

w. Fisher 898 

v. Fiske 664 

r. Gentry 78 

7. Milnef 36 

t;. Miltenberger 766 

v. New York 347, 357, 358, 390 

v. People 673, 880 



Page 

Bailey v. Philadelphia, &c. R. R. Co. 79, 
228, 838, 867 

v. Sweeney 800 

v. Wright 425 
Bailey's Case 
Bain, Ex parte 

Baird v. Mayor 691 

v. State 200 
Baity v. Cranfill 

Baker v. Boston 884 

t7. Braman 232, 250, 251 

t7. Cincinnati 717 

r. Ducker 661 

v. Gordon 497 

v. Johnson 809, 814 

r. Kelly 623 

v. Kerr 688 

r. Lewis 863 

17. Mattocks 62 

t7. Panola Co. 710 

7. People 680 

v. Portland 888 

17.. Rand 81 

17. State 468, 470 

v. Stonebraker's Adm'rs 522 

r. Windham 307 

Balch v. Commissioners 770 

Baldwin v. Bank of Newberry 417 

17. Chicago 285 

v. Douglas Co. 737 

v. Flagg 413 

v. Franks 18 

f. Green 279 

v. Hale 416, 417 

17. Newark 406, 630 

v. New York 341 

v. North Branford 266, 327 

v. State 222 

Balfour v. Louisville, &c. R. R. Co. 823 

Ball v. Chadwick 100 

17. Commonwealth 437 

r. Gilbert 924 

v. Winchester 365 

v. Woodbine 302 

Ballard v. State 437 

Ballentine v. Mayor, &c. 236 

Ballot Act, Re ' 900 

Ballon v. State 304 

Balm v. Nunn 689 

Baltes v Farmers' Irr. Dist. 929 

Baltimore v. Baltimore, &c. R. R. 

Co. 665 

r. Keeley Inst. 696 

v. B. Tr. & G. Co. 299 

r. Cemetery Co. 741 

r. Clunet 165, 400 

r. Eschbach 324 

v. Hussey 694 

17. Johns Hopkins Hosp. 722 

v. Pendleton 362 

P. Redecke 288 

17. Scharf 505, 722 
p. State 100, 104, 169, 239, 253 
255, 257, 258, 657, 831 

v. Stewart 731 
Baltimore & E. S. Ry. Co. v. Spring 696 



TABLE OF CASES. 



XXV 



Page 
Baltimore & F. T. R. v. Baltimore, 

&c. Ry. Co. 758 

Baltimore & O. Ry. Co. v. Baugh 32 

v. Maryland 872 

Baltimore, &c. R. R. Co. v. P. W. & 

K. Ry. Co. 779 

v. Fifth Bapt. Ch. 297, 785 

v. Magruder 757 

v. Nesbit 761 

v. North 807 

. Pittsburgh, &c. R. R. Co. 780, 818 

Baltimore Tr. Co. v. B. B. Ry. Co. 32 

Baltimore, &c. Turnpike Co. v. 

Union R. R. Co. 398 

Baltzer v. North Carolina 410 

Bamberger & Co. v. Schoolfield 32, 180 
Banaz v. Smith 259, 731 

Bancroft v. Dumas 174, 845 

v. Lynnfleld 308 

v. Thayer 262 

Bandel v. Isaac 101 

Banger's Appeal 709 

Bangor v. Smith , 852, 858 

Bangs v. Snow 745, 749 

Banholzer 17. N. Y. L. Ins. Co. 39 

Bank v. Hines 703 

v. Supervisors 683 

Bank of Augusta v. Earle 178 

Bank of Chenango v. Brown, 166, 170, 173 
Bank of Chillicothe v. Chillicothe 272 
Bank of Columbia v. Okely 505, 564 

Bank of Commerce r. New York 683 
17. Tennessee 396, 738. 740 

r. Wiltsie 182, 183 

Bank of the Dominion v. McVeigh 392 
Bank of Hamilton v. Dudley's Les- 
see 33, 247, 516 
Bank of Illinois v. Sloo 86 
Bank of Mich. v. Williams 244, 503 
Bank of Republic v. Hamilton 
Bank of Rome v. Village of Rome 167 
Bank of the State v. Bank of Cape 

Fear 392 

v. Cooper 56( 

r. Dalton 4c 

Bank of United States 17. Daniel 33 

v. Halstead 103 

t7. Norton 2( 

Bank of Utica v. Mersereau 47 

Bank Tax Case 68< 

Bankers' Case 

Bankhead v. Brown 764, 775, 778 

Banks, Ex parte 439 

Banks, The v. The Mayor i 

Banner Pub. Co. v. State 619, 656 

Banning v. Commonwealth 88-; 

17. Taylor 502 

Bannon v. State 56( 

Banta v. Chicago 265 

Baptist Church v. Wetherell 660, 66 

Bar Association, Ex parte 69' 

Barbemeyer v. Iowa 18 

Barber v. Pittsburgh, Ft. W. & C. 

Ry. Co. 

17. Root 679, 580 

v. St. Louis, &c. Co. 637 



Page 

Jarber v. Trustees of Schools 262 

Jarber Asphalt Co. v. Hunt 195 
Barbier v. Connolly 11, 19,282, 832 

iarbour v. Barbour 514 

v. Camden 331, 543 

17. Erwin 522 

Barclay v. Barclay 487 

. HowelFs Lessee 810 

3ardwell 7. Anderson 673 

Barfield v. Gleason 731 

3arker, Ex parte 40 

17. Cleveland 80 
v. People 46, 99, 471, 894 

v. Pittsburgh 389 

Barling v. West 282, 285 

Barlow v. Lambert 62 

Barnaby v. State 858 

Barnard v. Bartlett 434 

v. Taggart 100 

Barnes v. Campbell 644 

i7. District of Columbia 266 

r. Dyer 729 

i7. First Parish in Falmouth 105 

w. Lacon 340 

17. McCrate 629 

v. Pike Co. 929 

v. Suddard 181 

v. Supervisors 907 

Barnet v. Barnet 638, 641 

Barnett v. Dennison 319 

17. People 470 

u. Railroad Co. 841 

r. Ward 607 

Barnitz v. Beverley 413 

Barnum v. Oilman 895, 932 
v. Okolona 81, 168, 319, 326 

Barr v. Moore 629 

Barre R. R. Co. v. Montpelier 807 

Barre Water Co., Re 696, 762 

Barrett v. Crane 685 

17. Failing 685 

17. Holmes 623 

17. Kemp 777 

v. Taylor 908 

Barren v. Baltimore 46 

v. Burnside 24 

t7. Dent 685 

v. Detroit 306 

Barronet, Matter of 438, 439 

Barrow v. Page 760 

Barrows v. Bell 637, 647 

Barry, Ex parte 498 
v. Lauck 908, 910, 927 

v. Mercein 33, 497 

Barry's Case 497 

Bartemeyer v. Iowa 38, 849 

Barthelemy v. People 658 
Bartholomew v. Harwinton 330, 331, 643 

Bartlett v. Christhilf 630 

t7. Clarksburg 302 

17. Columbus 800 

v. Crozier 803, 355 

t7. Kinsley 275 

v. Knight 42, 683 

w. Lang 615 

v. Morris 91 



XXVI 



TABLE OF CASES. 



Page 

Bartlett v. Wilson 631 

Barto v. Himrod 163, 169, 170, 172 

Barton n. Brown 251 

v. State 453 

v. Swepston 274 

v. Syracuse 356, 362 

t\ Thompson 81 

Bartruffc. Remey . 629 

Bass v. Fontleroy 176 

v. Nashville 120, 400 

v. Roanoke N. & W. P. Co. 512 

Bassett v. Porter 277 

Hasten r. Carew 687 

Batchelder v. Batchelder 679 

Bates v. Cullom 622 

r. Delavan 683 

v. Huston 661 

v. Kimball 78, 132, 137, 228 

v. McDowell 514 

r. Relyea 84 

v. Spooner 80 

v. Taylor 162 

Bates Co. v. Winters 319 

Bathrick v. Detroit Post, &c. Co. 637 

Baths, Ex purte 289 

Batman v. Megowan 937 

Batre v. State 464, 466 

Battle r. Howard 209 

Baugher v. Nelson 374, 672 

Baughn v. State 670 

Biium v. Clause 606 

v. Raphael 216 

Bauman v. Detroit 300 

r. Ross 716, 826 

Bauserman v. Blunt 27, 32 

Baxter, Matter of 371 

v. Brooks 937 

v. Winooski Turnpike 355 

Bay v. Gage 629 

Bayard v. Klinge 892 

v. Singleton 56 

Bay City v. State Treasurer 104, 325, 

338 

Bay City, &c. Co. v. Austin 407 

Bayerque v. Cohen 34 

Baylis v. Lawrence 656 

Bayly v. Fourchy 632 

Bays t-. Hunt 628 

v. State 262 

Beach v. Ranney 607 

v. Viles 33 

v. Walker 629, 633 

Beal v. Nason 621 

v. State 177 

Beale v. City of Boston 828 

Beall r. Beall 612, 554 

Beals v. Amador Co. 336 

Bean v. State 434 

Beard v. Beard 682, 585 

v. Hopkinsville 318, 320 

v. Wilson 200 

Bearden v. Madison 287 

Bcardsley v. Bridgman 607, 644 

v. Erie Ry. Co. 873, 875 

Smith 348, 354, 355 

v. Tappan 611 



Beardstown v. Virginia 89, 102, 914, 926, 

942 

Beasley v. Beckley 691 

Beaty v. Knowler 

Beauchamp v. State 128, 237 

Beaudeau v. Cape Girardeau 220 

Beaufort Co. Comm'rs v. Old Domin- 
ion S. S. Co. 693 
Beauregard v. New Orleans 
Beaver v. City of Harrisburg 763 
Beck v. Stitzel 605 
Becker v. La Crosse 312 
Beckwith v. Racine 415 
v. Rucker 900 
v. Winters 900 
Bedard v. Hall 195 
Bedell, Ex parte 473 
v: Bailey 692 
Bedford v. E. Building & L. Ass'n 179 
Bedle r. Beard 277 
Beebe v. State 132, 137, 236, 237, 245, 849 
Beecher v. Baldy 121, 251 
Beeching's Case 490 
Beef & P. Co. v. Best 417 
Beekman v. Saratoga, &c. R. R. Co. 754, 
764, 767, 770, 776, 776 
Beeler v. Jackson 612 
Beene v. State 481 
Beer Co. v. Massachusetts 400, 831, 845, 
846, 849, 854, 883 

Beers v. Beers 590, 591 

v. Botsford 352 

v. Haughton 406, 407 

Beets v. State 451 

Begeroro, Re 440 

Behrens v. Allen 638, 640 

Beiling v. Evansville 290 

Beirne v. Brown 370, 372 

Belcher Sugar Ref. Co. v. St. Louis 
Kiev. Co. 766, 770, 804 



Belden v. State 
Belknap v. Ball 

v. Louisville 
Bell v. Bell 

v. Clapp 

v. Morrison 

v. Norfolk, &c. R. R. Co. 

t>. Plattville 

v. Prouty 

v. Rice 

v. State 

v. Sun Printing Co. 

v. West Point 
Belles v. Bun- 
Belleville R. R. Co. v. Gregory 



83 
628 
893 

44, 579 
428, 430 
33, 34, 521 
757 
272 
765 
430 
451 
629 
363 
901 

92 



441, 



Bellinger v. New York Cent. R. R. 

Co. 757, 783, 807, 826 
Beliingham Bay & B. C. Ry. Co. v. 

New Whatcom 26 

Bellmeyer v. School District 261 

Bellows v. Parsons 87 

Bellport, Parish of v. Tooker 660 

Belo v. Commissioners 738 

Belvin v. Richmond 356 

Bemis v. Becker 86 

Benden v. Nashua 733 



TABLE OF CASES. 



XXV11 



Bender v. Crawford 414, 522 

v. State 219 
Bendey v. Townsend 

Benedict v. Goit 790 
v. Smith 

v. State 478 

v. Vanderbilt 856 
Benford v. Gibson 

Benjamin v. Manistee, &c. Co. 865 

v. Webster 294 

Bennett v. Am. Exp. Co. 879 
v. Bennett 

v. Boggs 237 

v. Borough of Birmingham 272, 283 

v. Brooks 859 

v. Bull 236 

v. Deacon 611 

v. Fisher 631 

v. Harms 38, 514 

v. New Orleans 304 

v. Pulaski 285 

v. State 437, 677 

Benoist v. St. Louis 726 

Bensley v. Mountain Lake, &c. Co. 763 

Benson v. Albany 239, 241 

v. New York 235, 344, 345, 347, 390, 

838, 843 

Bentinck v. Franklin 522 

Benton v. Town of Brookline 826 

v. Trustees, &c. 305 

Bents v. Graves 675 

Benz o. Weber 206 

Bergeman v. Backer 22, 32 

v. Cleveland 285, 890 

Berger v. U. S. Steel Cor'p. 396, 510 

Berkley v. Board of Education 532 

Berlin v. Gorham 166 

Bernhardt v. Brown 570 

Bernier v. Russell 559 

Beroujohn v. Mobile 285 

Berry v. Baltimore, &c. R. R. Co. 194, 247 

v. Carter 607 

v. Clary 539 

v. Doane Point K. R. Co. 194 

v. Ransdell 623, 624 

Berthold v. Fox 413 

Bertholf v. O'Reiley 851 

Bertonneau v. School Directors 557 

Beseman v. Pa. R. R. Co. 785 

Bethany v. Sperry 275 

Bethune v. Hayes 285 

Bettman v. Coroley 404 

Bettner v. Holt 606 

Bevard v. Hoffman 927 

Beveridge . Lewis 827 

Bibb v. Bibb 81 

v. Janney 252 

Bibb County Loan Association v. 

Richards 200 

Bickersdike v. Allen 571 

Bicknell r. Comstock 621 

Biddle v. Commonwealth 591 

v. Hooven 621 

Bidwell v. Whit taker 89 
Bielenberg v. Montana N. Ry. Co. 528, 842 

Bier v. McGehee 62, 384 



Bigelow v. Bigelow 

v. Randolph 

v. W. Wisconsin R. R. 
Big Grove r. Wells 
Biggs, Ex parte 

v. McBride 
Bigham v. State 



Page 
46 

355, 356 

92, 256, 823 

320, 324 

481 

105, 158, 159 
467 



Bigler's Executors v. Penna. Canal 

Co. 762 
Bill v. Norwich 363 
Billings r. Detten 645 
v. Fairbanks 611, 612 
v. Wing 605 
Billmeyer v. Evans 415 
Bills v. Goshen 284 
Bimeler v. Dawson 42, 683, 586 
Binghamton Bridge Case 892, 398, 549 
Bird, Ex parte 859 
v. Benlisa 751 
v. Daggett 324 
v. Perkins 363 
v. Smith 862 
v. State 448 
v. St. Mark's Ch. 661 
v. Wasco County 216 
Birdsall v. Carrick 221 
Birdsong, In re 473 
Birmingham v. McCary 362 
Birmingham, &c. St. Ry. Co. v. Bir- 
mingham St. Ry. Co. 299 
Birmingham M. Ry. Co. v. Parsons 164 
Birmingham T. Co. i: Birmingham 

R. & E. Co. 803 

Bischoff v. N. Y. El. 827 

Bishop v. Marks 7-56 

Bissell v. Briggs 41, 583 

v. Davidson 880 

v. Jeffersonville 321, 323 

v. Kankakee 320 

v. Penrose 104 

v. Spring Valley 319 

Bittenhaus v. Johnston 671 

Bitzer v. Thompson 284 

Black v. Black 681 

v. Columbia 301 

v. Gloucester City 182 

v. Sherwood 695 

v. State 468 

Blackford v. Peltier 623 

Blackhawk, Co. of, v. Springer 690 

Blackinton v. Blackinton 80 

Blackman v. Halves 765 

Black well v. State 442 

Blackwood v. Van Vleit 97, 412 

Bladen v. Philadelphia 111 

Blahnt v. State 676 

Blain v. Bailey 217 

Blair v. Charleston 828 

r. Forehand 881 

v. Kilpatrick 568, 889 

v. Milwaukee, &c. R. R. Co. 836 

i?. Ostrander 28, 417 

v. Ridgely 57, 370 

v. West Point 278 

Blake v. Dubuque 818 

v. McClung 21,38,813,825 



XXV111 



TABLE OF CASES. 



Page 

Blake v. Rich 808 

v. St. Louis 356, 362 

v. Winona, &c. R. R. Co. 839, 876 

Blakely v. Devine 307 

15 lake more v. Dolan 215 

Blakeslee v. Carroll 629 

Blauchard v. Raines 590 

r. Stearns 927 

Blandford v. State 41 

Blandford School District v. Gibbs 932 

Standing v. Burr 167, 336 

Blatchley v. Moser 280 

Bleakney v. Bank of Greencastle 633, 536 

Bledsoe v. Commonwealth 435 

Blessing v. Galveston 194, 200, 267 

Blewett v. Wyandotte, &c. R. R. Co. 841 

Blin v. Campbell 575 

Bliss v. Commonwealth 237, 499 

v. Hosmer 757 

t>. Kraus 265 

v. South Hadley 808 

Bliss's Petition 37 

Block v. Jacksonville 851 

v. Salt Lake R. T. R. Co. 298 

Blocker v. Burness 677 

Blodgett, In re 211 

Blood v. Mercelliott 207 

Bloodgood v. Mohawk & Hudson 

R. R. Co. 228, 761, 764, 766, 777, 813, 

814 

Bloom v. Richards 52, 662, 670, 675, 859 

Bloomer v. Stolley 175 

v. Todd 901 

Bloomfleld v. Charter Oak Bank 275 

v. Trimble 280 

Bloomfield, &c. Co. v. Calkins 791 

Bloomington v. Bay 356 

v. Brokaw 296, 304, 363 

v. Latham 731, 813, 825 

v. Pollock 828 

v. Wahl 285 

Blossburg, &c. R. R. Co. v. Tioga 

R. R. Co. 34 

Blount v. Janesville 296, 639, 719 

Blue v. Beach 880 

Blumb v. Kansas City 302, 362 

Blydenburg v. Miles 472, 886 

Board of Commissioners v. Allman 305 

v. Bearss 331 

v. Bradford 310 

v. Bright 642 

v. Church 337 

v. Lucas 307 

v. Merchant 20 

v. Pidge 861 

Board of Dir. of A. Irr. Dist. v. 

Collins 767 

Board of Education v. Blodgett 622 

v. Brunswick 231 

v. De Kay 319 

v. McLandsborough 679 

v. Minor 67, 263, 665, 670 

v. State 131 

v. Thompson 262, 263 

v. Tinnon 667 

Board of H. Com. v. Excelsior R. Co. 165 



Board of Health v. Van Hoesen 770 

Board of Improvement v. School 

Dist. 718, 741 

Board of Pol. Com'rs v. Wagner 431, 885 
Board of Public Works v. Columbia 

College 42 

Board of Street Openings, Re 759, 768 
Board of Supervisors v. Cowan 336 

v. Heenan 204 

Board of Trade Tel. Co. v. Barnett 787 
Board Water Com. v. Dwight 210 

Boardman v. Beckwith 531 

Bode v. State 845, 846 

Bodwell v. Osgood 619 

Boehm r. Hertz 696 

Bogardus v. Trinity Church 62 

Bogert v. Indianapolis 285 

Boggess v. Scott 750 

Boggs v. Merced, &c. Co. 753 

Bohanan v. Nebraska 31 

Bohannan v. Commonwealth 434 

Bohen, Re 881 

v. Waseca 363 

Bohl v. State 675 

Bolilinan v. Green Bay, &c. R. R. 

Co. 760, 761 

Bohmey . State 279 

Bohon's Assignee v. Brown 13 

Boice v. Boice 413 

Boisdere v. Citizens' Bank 256 

Boiling v. Lersner 30 

Bollman and Swartout, Ex parte 495 

Bolln v. Nebraska 30, 436, 456, 605 

Bolton v. Johns 515, 540 

v. Prentice 484 

Bombaugh v. Bombaugh 613 

Bonaparte, Prince Pierre, Trial of 442 

Bonaparte v. Tax Court 694 

Bond v. Appleton 86 

v. Commonwealth 463 

v. Kenosha 717, 718, 749 

v. State 437 

Bonds of Madera Irrig. Dist., Re 674, 

715, 731 

Bonham v. Needles 321 

Bon Homme Co. v. Berndt 183 

Bonnett v. Bonnett 497 

Bonney v. Bowman 688 

Bousall v. Lebanon 860 

Boogher v. Knapp 606, 606 

Booker v. Young 893 

Boon c. Bowers 84, 146 

Boonville v. Ormrod 817 

v. Trigg 216 

Boorman v. Santa Barbara 618, 722 

Boorum v. Connelly 663 

Booth v. Booth 633 

v. People 885 

v. Woodbury 331, 699, 812 

Borden v. Fitch 42, 579 

Boro v. Phillips Co. 736 

Borough of Dunmore's Appeal 269, 336, 

341, 391 

Borough of York v. Forscht 310 

Boske v. Comingore 35 

Bosley v. Mattingley 89 



TABLE OF CASES. 



XXIX 



Bossier v. Steele 
Bostick v. State 
Boston v. Cummins 

v. Schaffer 

v. Shaw 



Page 
209 
886 

237, 376 
283,710 
288, 861 



Boston, &c. Railroad Co. In re 806 

Boston & A. Ry. Co. v. Cambridge 758 
Boston, Concord, & M. R. li. Co. v. 

State 844 

Boston & Lowell R. R. Co. v. Salem 

& Lowell R. R. Co. 398 

Boston & M. R. R. Co. v. Cora'rs 839 
Boston & Roxbury Mill-dam Cor- 

poration v. Newman 772, 777 

Boston Mining, &o. Co., Matter of 214 
Boston Water Power Co. v. Boston 

& Worcester R. R. Co. 398, 757 

Bostwick v. Perkins 575, 576 

Boswell v. Commonwealth 437 

v. State 437, 467 

Botts u. Williams 39 

Boucher v. New Haven 363 

Bougliton v. Carter 757 

Boulder v. Niles 356 

Boulware i>. Davis 179 

Bounds v. Kirven 790 

Bourgeois, Ex parte 281 

Bourland v. Eidson 608 

v. Hildreth 183, 903, 929 

Bourn v. Hart 318 

Bourne v. The King 473 

Bow v. Allenstown 263, 276, 277 

Bowditch v. City of Boston 826 

Bowdoinham v. Richmond 268, 411 

Bowen v. Byrne 685 

v. Hixon 937 

v. King 275 

v. Preston 514 

v. State 24 

Bowers v. Smith 900 

Bowie v. Lott 120 

Bowler v. Eisenhood 937 

Bowles v. Landaff 333 

Bowling Green v. Carson 284, 887 

Bowman v. Chicago &N. W. Ry. Co. 847 

v. Middleton 234, 244, 509 

v. Smiley 252, 415 

Box well v. Affleck 660 

Boyce v. Sinclair 632, 536, 542 

Boyd, In re 160 

v. Alabama 831 

v. Bryant 174, 888 

v. Ellis 46 

v. Mills 900,911 

v. Nebraska 12 

v. Roane 686 

v. Selma 720 

. State 212, 400, 445 

Boye v. Girardey 710 

Boyer v. Grand Rapids F. I. Co. 212 

Boyland v. New York 357 

Boyle, Matter of 182, 225 

v. Arledge 34 

v. Zacharie 417 

Braceville Coal v. People 574, 877 

Brackett v. Norcross 615, 553 



Page 

Bradbury v. Davis 86 

Braddee v. Brownfield 237 

Braddy v. Milledgeville 285 

Braden v. Stumph 893 

Bradfield v. Roberts 664 

Bradford v. Brooks 138, 521 

v. Gary 389 

v. Shine 414, 522 

v. Stevens 846 

Bradley, Ex parte 454, 481 

v. Bander 738 

v. Baxter 163 

v. Buffalo, &c. R. R. Co. 841, 844 

v. Clarke 442, 893 

v. Fall Brook Irr. Dist. 768 

v. Fisher 481 

v. Heath 611, 620, 633, 658 

v. Me Atee 265, 396, 399, 719, 728, 730 

v. New York & N. H. R. R. Co. 565, 

765, 777 

v. People 683 

v. Pharr 764 

v. State 130 

Bradshaw v. Heath 42, 579, 583 

v. Lankford 164 

v. Omaha 258, 267, 721 

v. Rogers 812 

Bradstreet Co. v. Gill 611 

Bradt v. Towsley 607 

Brad well v. State 18, 38, 57, 568 

Brady v. Bronson 761 

v. King 546 

v. New York 323, 324 

v. Northwestern Insurance Co. 286, 

878 

v. Richardson 576 

v. West 218 

Bragg v. Meyer 36 

v. People 547 

Bragg's Case 681 

Braggs v. Tuffts 35 

Brainard v. Colchester 395, 396 

Branahan v. Hotel Co. 291 

Branch r. Tomlinson 252 

Branch Bank of Mobile v. Murphy 223 

Brand v. Multnomah Co. 168 

Brandon v. Gowing 478 

v. People 449 

v. State 209 

Branham v. Lange 161, 193, 216 

Brann v. Chicago 710 

Branson v. Gee 571, 814, 815 

v. Philadelphia 299, 840 

Brashear v. Madison 318 

Brass v. North Dakota 871 

Brassard v. Langevin 922 

Brasso v. Buffalo 362 

Braynard v. Marshall 26 

Breeding v. Davis 614 

Bregguglia v. Lord 290 

Breidenthal v. Edwards 900 

Breitenbach v. Bush 414 

Breitung v. Lindauer 407, 408 

Brenham v. Brenham Water Co. 271 

v. German Am. Bk. 319 

v. Story 146 



XXX 



TABLE OF CASES. 



Page 

Brennan v. Titusville 687, 689, 694 

Brent v. Chapman 621 

Brevoort v. Detroit 631 

v. Grace 144, 146 

Brewer v. Bowman 765 

v. Davis 389 

v. Mayor, &c. 194 

v. McClelland 908 

v. New Gloucester 351 

v. Weakley 624, 913 

Brewer Brick Co. v. Brewer 163, 740, 

742, 743 

Brewster v. Davenport 302 

v. Hough 176, 395, 741 

v. Syracuse 207, 642, 543, 702 

Brick Presbyterian Church v. New 

York 176, 295, 400, 881 

Bricker v. Potts 606 

Brickey, Re 499 

Bridal Veil Lumbering Co. v. John- 
son 765, 767, 775 
Bridge v. Ford 685 
Bridge Co. v. Hoboken Co. 392 
Bridgeport v. Housatonic B. R. Co. 167, 

612, 542 

Bridges, Ex parte ] 492 

v. Shallcross 158 

Bridge water v. Plymouth 648 

Brien v. Williamson 95, 120 

Brieswick v. Mayor, &c. of Bruns- 
wick 209 
Brig Aurora v. United States 165 
Briggs v. Garrett 624 
v. Georgia 114 
v. Hubbard 512, 622, 629 
v. Johnson Co. 261 
v. Lewiston, &c. Co. 795, 802 
v. Russellville 720, 722 
v. Walker 28 
v. Whipple 308 
Brigham v. Miller 107, 156 
Bright v. Boyd 652 
P. McCulloch 206, 712 
Brightman v. Bristol 884 
Brighton v. Wilkinson 266, 268 
Brim v. Jones 671 
Brimmer v. Boston 400 
v. Rebman 855 
Brinkmeyer v. Evansville 356 
Brinton v. Seevere 640 
Brisbin v. Cleary 913 
Briscoe v. Anketell 410, 515 
v. Bank of Kentucky 11, 35, 230 
Bristol v. Johnson 308, 309 
v. New Chester 268, 344 
v. Supervisors, &c. 616 
v. Washington County 21, 695 
Britain v. Kinnard 686 
British Plate Manuf. Co. v. Meredith 783 
Brittle v. People 69 
Britton v. Des Moines, &c. R. R. Co. 825 
v. Election Commissioners 899 
p. Ferry 104 
Broadhent v. State 664 
Broadfoot's Case 424 
Broadfoot v. Fayetteville 669 



Page 

Broadnax P. Baker 667 

Broadway Baptist Church v. Mc- 

Atee 741 

Broadwell v. Kansas City 304, 788 

Brock P. Barnet 765 

p. Hishen 814 

v. Milligan 677 

Brockway v. Kinney 81 

Brodhead v. Milwaukee 331, 700 

Broderick's Will 43 

Brodnax v. Groom 194 

Broil P. State 465 

Bromage v. Prosser 647 
Bromley v. People 

v. Reynolds 711 

Bronson v. Bruce 624, 644, 646 

v. Kinzie 406, 408, 409, 412 

v. Newberry 406, 408 

v. Oberlin 291, 888 

v. Wallace 34 

p. Wallingford 304 

Bronson's Estate 720 

Brook P. Montague 632 

Brooke v. Philadelphia 321 

Brooker p. Coffin 605, 607 

Brooklyn, Re 383, 393, 758 

Brooklyn p. Breslin 285 

v. Long Island 756 

Brooklyn & Newton R. R. Co. v. 

Coney Island R. R. Co. 796 
Brooklyn Central R. R. Co. P. Brook- 
lyn City R. R. Co. 278, 794, 796 
Brooklyn Park Commissioners v. 

Armstrong 770, 809 

Brooklyn Trust Co. v. Hebron 275 

Brooks P. Cedar Brook 782 

p. Harison 605 

p. Hyde 183 

v. Missouri 31 

p. Mobile School Commissioners 92 

Brophy v. Hyatt 860 

Brosnahan, In re 493 

Brotherton p. People 437 

Brow p. Hatheway 619 

Brower p. O'Brien 935 

Brown, Ex parte 41, 433, 438 

In re 497 

p. Beatty 754, 819 

p. Brown 196 

p. Calumet R. R. Co. 822 

p. Cape Girardeau 258 

p. Cayuga, &c. R. R. Co. 757, 784, 819 

p. Chadbourne 861, 862 

p. Chicago 816 

p. Circuit Judge 129 

v. Com'rs Rush Co. 936 

p. Commonwealth 451, 867 

P. Denver 722 

P. Duffus 133, 496 

v. Duplessis 681, 799 

P. Epps 691 

p. Fi field 95 

p. Fleischner 170 

p. Foster 686 

p. Grover 99, 902 

p. Guyandotte 306 



TABLE OF CASES. 



XXXI 



Page 

Brown v. Hanson 605 

v. Haywood 657, 659 

v Hitchcock 407 

v. Houston 686, 688 

v. Hummel 392 

v. Lei ten 252 

;. Lunt 898 

v. Maryland 686, 688, 846, 847, 858 

v. Massachusetts 30 

v. McCollum 915 

v. New Jersey 14, 34, 46, 456, 457, 505 

v. New York 639 

v. Ohio Valley Ry. Co. 232 

v. Orangeburg Co. 346 

v. Parker 622 

v. People 382 

v. Phillips 901 

v. Pratt 62 

v. Providence, W. & B. R. R. Co. 826 

v. Russell 66 

v. School Dist. 749 

v. Seattle 784 

v. Seay 120 

v. Smart 416, 417 

v. Smith 606, 719 

v. State (5 Col.) 106 

v. State (79 Ga.) 208, 468 

v. State (7 S. E. Rep.) 400 

v. State (32 Miss.) 452 

v. State (8 Blackf.) 468, 577 

v. State (16 Ind.) 458 

v. Storm 652 

v. Turner 895 

v. United States 104 

v. Walker 442 

v. Wilcox 97 

r. Worcester 815 

Brown's App. 709 

Brown & Allen v. Jacobs P. Co. 661 

Brownback v. North Wales 694, 888 

Brown Shoe Co. v. Hunt 569 

Brown University v. Granger 740 

Browne v. Scofield 861 

Browning v. Springfield 356, 357 

Brownville v. Cook 280 

Bruce v. Bradshaw 146 

Bruffet v. Great Western R. R. Co. 392 

Bruley v. Garvin 478 

Brumagin v. Tillinghast 687 

Bruning v. N. O. Canal & Banking 

Co. 763 

Bruns v. Crawford 414 

Brunswick v. Finney 166, 167 
Brunswick & W. Ry. Co. v. City of 

Way cross 762 

Brush ;. Carbondale 296 

v. Keeler 924 

Bryan, Ex parte 452 

v. Cattell 389 

v. Page 274 

v. Reynolds 196 

v. Stephenson 893 

v. Walker 518 

Bryant v. Robbins 130, 868 

Bryar v. Campbell 40 

Bryrner v. Butler 872 




Bryson v. Bryson 

v. Campbell 
Buchanan, A' 

v. Hubbard 

v. Jones 

v. Litchfield 
Bucher v. Cheshire R. R. Co. 33 

Buchner r. Chicago, &c. R. R. Co. 791 
Buck v. Miller 719 

Bucki v. Cone 862 

Buckingham v. Davis 695 

v. Ludlum 82 

v. Smith 759, 764 

Buckles a. Ellers 52 

Buckley v. N. Y. & N. H. R. R. Co. 844 
Bucknall v. Story 748 

Buckner v. Finley 42 

v. Lynip 911 

v. Gordon 902 

Budd v. New York 871 

v. State 669 

Buddington, Matter of 495 

Budge v. Grand Forks 751 

Buell v. Ball 306, 721 

Buffalo v. Holloway 362 

v. Webster 284, 287, 887 

Buffalo, &c. R, R. Co. v. Ferris 690, 814 
Buffalo & N. Y. R. R. Co. r. Brainerd 765 
Buffalo & Niagara R. R. Co. v. Buffalo 840 
Buffalo, N. Y. & P. R. R. Co. v. Har- 
vey 817 
Buffington v. Grosvenor 38 

v. Overton 759 

Buhl v. Fort St. Union Depot Co. 781 
Bulger, In re 388 

v. Eden 303 

Bulkley v. Callanan 751 

v. N. Y. & X. H. R. R. Co. 841, 843 
Bull v. Conroe 647, 558 

v. Read 165,166,171,237 

Bullard v. Chandler 44 

Bullock v. Bullock 43, 45 

v. Curry 312, 318 

Bumpass v. Taggart 685 

Bumpus v. French 572 

Bumsted v. Govern 183, 205 

Bunn v. Gorgas 414 

v. People 104 

v. Riker 924 

Bunton v. Worley 630 

Buonaparte v. Camden & Amboy R. 

R. Co. 46, 316, 776 

Bur, Ex parte 494 

Burch v. Newberry 138 

v. Savannah 710 

Burckholter v. McConnellsville 265 

Burden v. Stein 769 

Burdeno v. Amperse 95 

Burdett v. Abbott 191 

v. Allen 674 

Burdick v. Babcock 263 

v. Missouri P. Ry. Co. 453 

v. People 510, 886, 887 

Bureau Co. v. Railroad Co. 706 

Burford v. Grand Rapids 301 

. Wible 607 



XXX11 



TABLE OF CASKS. 



Page 

Burger, In re 495 

Burgess v. Clark 773 

v. Pue 104, 166, 173, 266 

v. Seligman 35 

Burgett v. Burgett 202 

Burghardt v. Turner 513 

Burke v. Elliott 898 

v. Gaines 

v. Mechanics' Savings Bank 144 

v. St. Paul, M., &c. Ry. Co. 129 

v. Supervisors of Monroe Co. 207, 

983, 936 

Burkett v. McCarty 902 

v. McCurty 133 

Burks v. Bennett 692 

v. Hinton 87 

Burley v. State 452 

Burlingame v. Burlingame 630, 631 

Burlington v. Bumgardner 283, 709 

v. Gilbert 296 

v. Kellar 279, 745 

v. Leebrick 144, 165 

v. Putnam Ins. Co. 283 

Burlington C. K. & N. Ry. Co. v. Dey 873 

Burlington & M. R. R. R. Co. v. 

Reinhackle 797 

v. Webb 842 

Burmeister v. Howard 272 

Burnes v. Atohison 717 

Burnett, Ex parte 281, 282, 291 

v. Dean 184 

v. Kinney 44 

v. Maloney 183 

v. Sacramento 717, 728, 730 

Burnham v. Chelsea 331 

v. Commonwealth 582 

v. Morrissey 191, 193 

v. Stevens 496 

Burns, Ex parte 144 

v. Clarion County 269, 336 

v. Crawford 414 

Burnside v. Lincoln Co. Ct. 232, 849 

Burr v. Carbondale 337, 704 

v. Ross 194 

Burrel v. Associated Reform Ch. ' 660 

Burridge v. Detroit 297 

Burrill v. Augusta 305 

v. Boston 327 

v. West 82 

Burritt v. Com'rs 218 

v. New Haven 272 

Burroughs v. Eastman 425 

Burrows, In re 690 

v. Delta Trans. Co. 853 

Burson v. Huntington 685 

Burt v. Advertiser N. Co. 644, 645 

v. Brigham 761 

v. Merchants' Ins. Co. 755 

v. Williams 138, 414 

Burton v. Burton 605 

v. Chattanooga 304 

Burtt v. Pyle 454 

Buser v. Shepard 407, 514 

Bush v. Bd. Suprs. of Orange Co. 333, 697 

v. Indianapolis 216 

v. Kentucky 19 



Bush v. Seabury 

v. Shipman 
Bushel's Case 
Bushnell v. Beloit 
Bushnell's Case 
Buskett, Re 
Busk irk v. Strickland 



284, 887 

389, 391 

461 

167, 325 
496 
442 
784 



Butcher's Slaughtering & Melting 

Ass'n v. Commonwealth 827 

Butcher's Union Co. v. Crescent City 

Co. 399, 402 

Butler, Re 436 

v. Board of Regents 895 

v. Chambers 882 

r. Dunham 325 

v. Farnsworth 37 

v. Gage 30 

v. Gorely 416 

v. Palmer 406, 413, 543 

v. Pennsylvania 388, 389 

v. Porter 750 

v. Pultney 331 

v. Rockwell 387 

v. Shiver 252 

. State 47, 161, 451 

v. Supervisors of Saginaw 137, 712 
v. Toledo 530 

Butler's Appeal 237, 742 

Butte, A. & P. R. Co. v. Montana U. 

R. Co. 758, 765, 767, 777 

Butte & B. Consol. Min. Co. v. Mont. 

re. P. Co. 610 

Butterworth v. Henrietta Tex. Civ. 

App. 301 

Buttrick v. Lowell 305 

Butts v. Swartwood 677 

Buys v. Gillespie 607 

Byam v. Collins 611 

Byers v. Commonwealth 690 

v. McAuley 27, 32 

Byler v. Asher 906, 927 

Byram v. Marion Co. Com'ra 740 

Byrd, Ex parte 285, 888 

Byrne v. Missouri 36 



C. 



Cabanne v. Graf 682 

Cabell v. Cabell 156 

Cadwallader v. Harris 95 

Cady v. Walker 478 

Cage v. Trager 815 

Cagwin v. Hancock 324 

Gaboon v. Commonwealth 120 

Cain v. Commissioners 174, 717 

v. Syracuse 302 

Cairo v. Bross 283 

v. Zane 319, 321 
Cairo, &c. R. R. Co. v. Sparta 319, 340 

v. People 841 

v. Trout 120 

Calaveras Co. v. Brockway 937, 941 

Calcote v. Stanton 30 
Calder v. Bull 11, 131, 237, 373 

v. Kurby 400 



TABLE OF CASES. 



XXX111 



Caldwell v. Alton 

v. Barrett 

v. Gale 

v. Justices of Burke 

v. Lincoln 

v. Texas 

Caldwell Co. v. Harbert 
Caledonian Ry. C 

Trustees 
Calhoun v. Fletcher 

v. Little 

v, McLendon 
California v. Centr. I 
Cal. Tel. Co. v. Alta Tel. Co. 
Calking v. Baldwin 
Calkins v. Cheney 

v. State 

v. Sumner 
Call v. Chadbourne 

v. Hagger 

v. Wilkesboro 
Callahan v. St. Lou 
Callam v. Saginaw 
Callan v. Wilson 
Callen v. Columbus 

v. Columbus M, 
Callendar v. Marsh 
Cailendar's Case 
Callison v. Hedrick 
Calvin v. Reed 
Calwell v. Boone 
Cambridge v. Lexington 
Camden v. Camdei 
Camden & Ambo 

Briggs 

Camden & S. Ry. ( 
Cameron v. Chicag 

v. Chicago, M 

Co. (42 Minn.) 

v. Chicago, M. & S 
Co. (60 Minn.) 

v. Chicago, M. & f 
Co. (63 Minn. 

v. Kenyon-Connell 

v. Parker 

v. P. & L. E. Ry. Co. 

v. Supervisors 
Camp v. State 
Campau v. Detroit 

v. Langley 
Campbell, Ex parte 

v. Bannister 

v. Board, &c. 

v. Campbell 

v. Chicago, M. < 

v. Dwiggins 

v. Evans 

r. Fields 

v. Holt 

r. Indianapolis 

v. Metr. St. Ry. Co. 

v. Morris 

v. Quinlin 

v. Spottiswoode 

v. State 

v. Union Bank 



Page 


Page 


285 


Campbell's Case 56, 125, 217 


174 


Canal Co. v. R. R. Co. 149 


86 


Canal Trustees v. Chicago 717 


ce 167 


Cancemi v. People 458, 677 


709 


Cannon, In re 41 


14, 30, 457 


v. Brame 80 


rt 336, 522 


v. Hemphill 209 


v. Walker's 


v. Mathes 116, 116, 209 


811,812 


v. New Orleans 691 


604 


Canton v. Nist 279 


289 


Cantril v. Sainer 213 


136 


Cantwell v. Owens 89 


R. R. Co. 683, 706 


Cape Girardeau v. Honch 777 


sL Co. 398 


v. Riley 118 


814, 816 


Cape Girardeau Co. Ct. v. Hill 217 


660, 661 


Cape Girardeau, &c. Road v. Dennis 779 


449 


Cape May v. Cape M. Del. Bay & S. 


629 


P. Ry. Co. 297 


166, 167 


Capen v. Foster 906, 908, 927 


410, 521, 523, 524 


Caperton v. Martin 622 


775 


Capital City Dairy Co. v. Ohio 46 


&.. B. T. Co. 570 


Capital Nat'l Bk. v. First Nat. Bk. 31 


338 


Capital Traction Co. v. Hof 47, 458 


691 


Caplis, Ex parte 440 


E. L. Co. 804 


Cardigan v. Page 924 


S. Ry. Co. 804 


Card well v. American Bridge Com- 


296, 783 


pany 65, 864, 866 


613 


Carey v. Chicago, &c. Ry. Co. 841 


814, 815 


v. Giles 149, 237, 253 


679 


Cargill v. Power 250, 413 


301, 305 


Cargill Co. v. Minn. 887 


a 269 


Carleton v. Bickford 42 


lage Corp. 695 


v. Goodwin's Ex'r 138 


. R. Co. v. 


v. Rugg 590 


842, 874 


v. Whitcher 198 


. Stetson 424 


Carlisle v. United States 160 


c. Rv. Co. 823 


Carlslake v. Mapledoram 606 


St. Paul Ry. 


Carlson v. St. Louis Riv. D. & I. Co. 782 


) 827 


Carlton v. People 898 


5t. Paul Ry. 


Carman v. Steubenville & Indiana R. 


.) 556 


R. Co. 786 


3t. Paul Ry. 


Carmody v. State 439 


) 671 


Carne v. Litchfield 448 


Comm'l Co. 279 


Carothers v. Hurly 525 


389 


Carpenter v. Bailey 644 


to. 828 


v. Dane County 477 


761 


v. Grand Trunk Ry. Co. 62 


689 


v. Jennings 825 


249, 257 


v. Landaff 823, 824, 825 


620 


v. Montgomery 224, 258 


849 


v. Oswego & Syracuse R. R. Co. 791 


612 


v. Pennsylvania 374, 638 


215 


v. People 93, 182, 464 


605, 6011 


i'. Snelling 685 


. PaulRy. Co. 876 


v. Strange 44 


722 


v. Tan-ant 606 


520, 582 


Carr, In re 177 


63 


v. Brown 670 


20, 522 


v. Coke 195 


184 


v. Georgia R. R. Co. 817 


795, 811, 828 


v. Nichols 505 


37, 674, 693 


v. Northern Liberties 301, 302, 303, 


85 


362 


656 


v. State (106 Ala.) 408 


46, 470 


v. State (127 Ind.) 24 


149, 237, 246 


v. St. Louis 279 


c 



XXXIV 



TABLE OF CASES. 



Page 

Carrington v. St. Louis 305 

Carroll v. Missouri P. Ry. Co. 

r. Olmsted's Lessee 145 

v. State 499 

v. St. Louis 302,311 

v. Wis. Centr. R. R. Co. 784 

Carroll Co. v. Smith 34 

Carrollton v. Bazzette 290, 690, 888 

Carson v. Blazer 752 

v. Brockton Sewer Com'rs 713, 718, 

722, 730 

v. Carson 370, 403 

. Coleman 813 

v. McPhetridge 895, 932 

Carter v. Balfour 62 

. Commonwealth 456 

v. Dow 284, 881 

v. Dubuque 311 

v. Rice 74 

v. State 434 

r. Walker 587 

Carter Co. v. Siuton 206, 320 

Carter's Adm'r v. Carter 252 

Cartersville v. Lanham 286, 860 

Carthage v. Frederick 298 

v. National Bank 284 

Carton v. Illinois Cent. R. R. Co. 840, 874 

Caruthers v. Russell 924 

Cary v. Western U. Tel. Co. 198 

Cary Library v. Bliss 807 

Casborus r. People 470 

Case v. Dean 623, 527, 748 

r. Dunmore 252, 415 

t. New Orleans, &c. R. R. 80 

v. Reeve 82 

v. Rorabacker 192 

v. State 898 

v. Thompson 814 

v. Wildridge 89 

Cash, Appellant 148 

v. Whitworth 769 

Cass v. Dillon 167, 217, 333 

Cass County . Chicago B. & Q. Ry. 

Co. 706 

v. Johnson 893 

v. Wilbarger County 322 

Cass Farm Co. v. Detroit 714, 731 

Cassard v. Tracy 616 

Casselman v. Winship 606 

Cassidy v. Old Colony 826 

Castellaw t>. Guilmartin 80 

Caster v. Texas 19 

Castillo v. McConnico 750 

Castleberry v. Kelly 605, 607 

Castro v. De Uriarte 105 

Caswell, Re 848 

Cate v. Martin 219 

Cater v. N. W. Tel. Exch. Co. 804 

Cateril v. U. Pac. R. R. Co. 527 

Cates v. Kellogg 644 

v. Wadlington 861 

Cathcart v. Robinson 52 

Catlin v. Hull 694 

r. Smith 58 

Cattell r. Lowry 920 

Caughran v. Oilman 42 



Caulfield v. Bullock 927 
Caw ley v. People 

Cayuga Bridge Co. v. Magee 666 

Cearfoss v. State 91 
Cedar Rapids Water Co. v. Cedar 

Rapids 872 
Center Tp. v. Com'rs Marion Co. 80 
Central, &c. R. R. Co. v. People 212 
Central B. U. P. R. R. Co. v. An- 
drews 797 
Central Branch U. P. R. R. Co. v. 

Atchison, &c. R. R. Co. 754, 817 

Central Bridge Corp. v. Lowell 392, 757, 

758 
Central City Horse Railway Co. v. 

Fort Clark Horse Railway Co. 758 

Central Georgia Ry. Co. v. State 201 

Central la. Ry. Co. v. Board 706 

Central Land Co. v. Lardley 36 
Central L. & T. Co. v. Campbell 

Commn. Co. 21 

Central Nat'l Bk. v. Stevens 25 

Central Ohio R. R. Co. v. Holler 825 

Central Pac. Ry. Co. v. California 680 

Central Park Extension, Matter of 770 
Central Plank Road Co. v. Hanna- 

man 209 

Central R. & B. Co. v. Wright 741 
Central R. R. Co. v. Board of Asses- 
sors 689, 706 
v. Hetfield 791, 806 

v. Rockafellow 677 

v. State 396 
Central Transp. Co. v. Pullman P. 

C. Co. 565 

Centralia v. Scott 363 

v. Wright 828 

Centre St., In re 729 

Chadbourne v. New Castle 346 

Cliadwick v. Moore 414 

Chafee r. Quidnick Co. 453 

Cliaffe v. Aaron 6lfi 

Cliaffee Co. Com'rs v. Potter 322 
Chagrin Falls, &c. Plank Road Co. 

v. Cane 790 

Chalker v. Ives 516 

Chamberlain v. Dover 275 

r. Elizabethport, &c. Co. 789 

v. Lyell 251 

v. Sibley 162 

Chamberlain of London v. Compton 281, 

287 

Chambers v. Church 868 

v. Fisk 104 

v. Satterlee 7.30 

v. State (127 Ind.) 895 

v. State (25 Tex.) 215 

Champaign v. Pattison 363 

Champaign Co. v. Church 269 

Champer v. Greencastle 290 

Champion v. Ames 687 

Chance v. Marion Co. 91 93 

Chandler v. Calumet & H. Min. Co. ' 22 

^ '--Nash 129,58!) 

Chaney v. Bryan 579 

Chapin v. Paper Works 666 



XXXV 



Page 

Chapman, Re 467 

v. Albany & Schnectady R. E. 

Co. 796 

v. Calder 619 

v. Gates 814, 815 

v. Macon 363 

v. Morgan 675 

v. Smith 80 

Chappee v. Thomas 681 

Chappel v. United States 768 

Chappell Chem. & F. Co. v. Sulphur 

M. Co. 15, 28 

Chariton v. Barber 292 

Charles River Bridge v. Warren 

Bridge 374, 649, 665, 817 

Charleston v. Benjamin 675 

Charlestown Branch R. R. Co. v. 

Middlesex 814, 815 

Chariton v. Alleghany City 783 

v. Watton 638, 640 

Charlotte C. & A. Ry. Co. v. Gibbes 844 



Charpentier v. Bresnahan 
Chase v. Blodgett 

v. Chase 

v. Cheney 

v. Fish 

v. Merrimac Bank 

v. Miller 

v. Oshkosh 

v. People 

t?. Stephenson 
Chase's Case 

Chattaroi Ry. Co. v. Kinner 
Chauvin v. Valiton 
Chavannes v. Priestly 
Cheadle v. State 
Cheaney v. Hooser 
Cheever v. Shedd 

v. Wilson 



262 
43 
578 
661 
193 
351 
903 
297 
437 
657 
654 
406 

712, 583 
672 
643 

166, 331, 699, 702 
296 
43 



Chenango Bridge Co. v. Bingham- 

ton Bridge Co. 565, 667 

Cheney v. Atlantic City Water Works 763 

v. Jones 253 

Chenowith v. Commonwealth 474 

Cherokee v. Fox 285 

Cherokee Nation v. Georgia 3, 96 

r.S. K. Ry. Co. 756,814 

Cherokee Tobacco, The 25 

Chesapeake, &c. Co. v. Hoard 217 

Chesapeake & Ohio Canal Co. v. 

Baltimore & Ohio R. R. Co. 767 

Chesapeake & O. Ry. Co. t>. Kentucky 869 

Chesapeake, &c. Ry. Co. v. Miller 91 

Chestnut v. Shane's Lessee 538 

Chestnut St., In re 787 

Chestnutwood v. Hood 893 

Chester v. Black 308 

Chetwynd v. Chetwynd 497 

Chevrier v. Robert 622 

Chicago v. Baptist Union 741 

v. Bar tree 287 

v. Blair 714 

v. Brophy 362 

v. Collins 289, 297 

v. Hesing 363 

v. Langlass 363 



Chicago v. Lamed 717, 722 

v. Manhattan Cement Co. 301, 346 
v. McCarthy 358 

v. McCoy 27-2 

. v. McGinn 286 

v. McGiven 363 

v. Netcher 289, 658, 837 

v. O'Brennan 362 

v. O'Brien 286, 730 

v. People 929 

17, Robbins 33, 356 

v. Rumpff 562 

v. Stratton 293 

v. Taylor 810 

v. Wheeler 819 

Chicago & E. I. R. R. Co. v. Wiltse 766 

Chicago & G. T. Ry. Co. v. Chappell 705 
v. Hough 781, 839 

v. Wellman 267, 873 

Chicago G. W. Ry. Co. v. First M. E. 
Church 297, 763 

Chicago & N. W. Ry. Co. v. Chicago, 

&c. R. R. Co. 806, 807 

v. Gait 763 

v, Langdale Co. 168 

v. Milwaukee R. & K. El. Ry. 803 
v. Town of Cicero 762 

Chicago, &c. R. R. Co. v. Ackley 875 
v. Adler 617 

v. Barrie 841 

v. Boone Co. 711 

v. Haggerty 840 

v. Iowa 18, 840, 874 

v. Joliet 282, 789, 798, 883 

v. Lake 398, 759, 775, 778 

v. Mallory 907, 930 

v. Oconto 349 

v. People 299, 840, 875 

v. Smith 237, 760 

v. Starkweather 758 

v. Stein 787 

v. Triplett 843 

Chicago, B. & K. C. Ry. Co. v. Guffey 396 

Chicago, B. & N. P. R. Co. v. Bow- 
man 823, 824 

Chicago, B. & N. Ry. Co. v. Porter 767 

Chicago, B. & Q. R. Co. v. Chicago 828 
v. Jones 873 

v. Nebraska 843 

v. West Chicago S. Ry. Co. 803 

v. Wilson 780 

r. Wolf 222 

Chicago, K. & N. Ry. Co. v. Hazels 811 

Chicago, K. & W. Ry. Co. v. Parsons 826 
17. Pontius 16 

Chicago Life Ins. Co. v. Auditor 406 
v. Needles 30, 392 

Chicago, M. & St. P. Ry. Co. v. Becker 876 
v. Milwaukee 715 

17. Minnesota 873, 874 

v. Solan 852 

v. Tompkins 872, 874 

Chicago Mun., &c. Co. v. Lake 391 

Chicago Packing, &c. Co. v. Chicago 280, 

293, 400 

Chicago P. & St. L. Ry. Co. v. Eaton 827 



XXXVI 



TABLE OF CASES. 



Page 

Chicago, R. I. &c. Co. v. McGlinn 177 

Chicago, R. I. & P. Ry. Co. v. Ottumwa 715 

v. Sturm 20, 43, 695 

v. Zernecke 844 

Chicago, S. F. & C. Ry. Co. v. Ward 822 

Chicago, &c. Terminal Ry. Co. v. 

Whiting, H. & E. C. St. Ry. Co. 803 

Chicago U. T. Co. v. Chicago 387 

Chicago, W. I. R. R. Co. v. Ayres 811 

v. Englewood, &c. Ry. Co. 785 

v. 111. Centr., &c. Co. 807 

Chicago W. & V. Coal Co. v. People 888 

Chicot County v. Sherwood 27 

r. Davis 200 

Chidsey r. Canton 303, 355 

Child ?. Bemus 290 

Child r. Boston 303 

Child's Case 494 

Childress v. Mayor 286 

Childs v. New Haven, &c. R. R. Co. 824 

v. Shower 257, 553 

Chiles v. Drake 209 

v. Monroe 209 

Chilton v. St. Louis & I. M. Ry. Co. 869 

Chilvers v. People 283, 710, 867 

Chincleclamouche L. & B. Co. v. 

Commonwealth 392 

Chinese Exclusion Case 25 

Chiniquy v. People 324 

Chisholm v. Georgia 3, 8, 52 

t>. Montgomery 272 

Chittenden v. Wurster 158, 159 

Choper v. Eureka 35H 

Chouteau v. Gibson 83 

Chow Goo Pooi, In re 493 

Chrisman v. Bruce 927, 928 

Christ Church v. Philadelphia, 396, 402, 

547 

Christal v. Craig 605 

Christensen, Matter of 580 

Christian, In re 854 

v. Commonwealth 473 

Christian Union v. Yount 180 

Christie v. Bayonne 215 

Christmas . Russell 43 

Christy v. Commissioners 389 

Chumasero v. Potts 162 

Chunn v. Gray 42 

Church i'. Chapin 80 

v. Kelsey 47 

t7. Rowell 903 

v. South Kingston 573, 589 

Church of Jesus Christ of L. D. S. v. 

United States 54 

Chute v. Winegnr 321 

Cicero Lumber Co. v. Cicero 289, 297, 783 

Cincinnati v. Batsche 731 

Cincinnati i>. Bryson 283 

v. Buckingham 285 

v. Rice 676 

Cincinnati, &c. R. R. Co. v. Carthage 391 

v. Cook 840 

17. Commissioners of Clinton Co. 132 

Cincinnati College v. State 741 

Cincinnati Gaslight Co. v. Avondale 299 

. State ' 284, 710, 717 



Page 

Cincinnati Gazette Co. v. Timber-lake 637, 

638, 640 

Cincinnati Health Ass'n v. Rosenthal, 38 
Cincinnati, H. & D. Ry. Co. v. Bowl- 
ing Green 287 
Cincinnati, H. & I. R. R. Co. v. Clifford 392 
Cincinnati, L. & N. Ry. Co. v. Cincin- 
nati 731 
Cincinnati, N. O. & T. Ry. Co. r. 

Commonwealth 706 

Cincinnati, W. & M. R. Co. v. Ander- 
son 758, 806 
Circleville v. Neuding 362 
Cisco v. Roberts 856, 858 
r. School Board 869 
Citizens' El. Light &P. Co. v. Sands 508 
Citizens' Gas, &c. Co. v. Elwood 299 
Citizens' Ins. Co. v. Parsons 11 
Citizens of Cincinnati, In re 130 
Citizens & Taxpayers D. S. P. v. 

Williams 893 

Citizens' Savings Bk. v. Owensboro 396, 

547 
Citizens' Savings & L. Assn. v. Perry 

Co. 322 

Citizens' St. Ry. Co. v. Detroit 297 

Citizens' Water Co. v. Bridgeport, 

&c. Co. 402 

City Council v. Benjamin 859 

v. Pepper 285 

City National Bank v. Mahan 36 

City Ry. Co. v. Citizens' St. Ry. Co. 392 
Civil Rights Cases 18, 869 

Claflin v. Hopkinton 310, 327 

Claiborne Co. v. Brooks 320 

Clapp v. Cedar County 323, 325 

v. Ely 139 

Clair v. State 436, 455 

Clare v. People 206 

Clarion Turnpike & B. Co. v. Clarion 

Co. 827 

Clark, Ex parte 434, 492, 901 

Re, (65 Conn.) 425, 571 

Re, (195 Pa.) 65 

Matter of 39, 40 

r. Baltimore 529 

v. Barnard 24 

v. Bever 32 

v. Binney 637 

v. Board of Directors 557 

v. Bridge Proprietors 269 

v. Buchanan 935 

v. Clark 154, 156, 403, 517, 530, 578 
17. Commonwealth 898 

v. County Court 588 

. County Examiners 918, 919, 920, 

935 

v. Crane m 

v. Davenport 217, 745 

t7. Des Moines 270, 274, 311, 320,' 323, 

324 

T7. Dram Com'r 818 

v. Ellis 246 

i7. Holmes 535, 5H6 

t7. Janes ville 167, 224, 225, 325 

v. Jeffersonville, &c. R. R. Co. 85 



TABLE OF CASES. 



XXXVll 



Page 

Clark v. Kansas City 15, 231, 232 

v. Lamb 692 

v. Le Cren 281, 287 

v. Martin 406, 414 

v. McCreary 615 

v. McKenzie 936 

v. Miller 259, 818 

v. Mobile 165 

v. Mollyneaux 647 

v. People 101, 253, 255, 453 

v. Kobinson 903, 906, 917, 932 

v. Russell 841 

v. Sammons 80 

v. School Directors 262, 272 

v. South Bend 287 

v. State ( 12 O. ) 376, 378, 437 

v. State (142 N.Y.) 877 

v. Washington 295, 356, 360 

v. White 764 
Clark's Adm'r v. Hannibal & St 

Joseph R. R. Co. 843 

Clark's Case 423 

Clarke r. Clarke 32, 43 

v. Irwin 109 

v. Jack 167 

v. Rochester 256 

v. Rogers 166 

v. Smith 33 

v. Van Surlay 144 

Clarksburg El. L. Co. v. Clarksburg 299 

Clason v. Milwaukee 282 

Clay, Ex parte 495 

v. Grand Rapids 719 

v. Smith 417 

Clay brook v. Owensboro 557 

Clay Co. v. Chickasaw Co. 217, 268 

Clayton, Re 674 

v. Harris 99 

v. Henderson 303 

Cleburne v. Gulf, &c. Ry. Co. 271 

Clee v. Saunders 700 

Clegg v. Laffer 606 

v. School District 348 

Cleghorn v. Greeson 252 

v. Postlewait 712 

Cleland v. Anderson 573 

w. Porter 929 

Clem v. State 463 

Clemens v. Conrad 685 

Clement v. Mattison 484 

Cleveland, In re 129, 130, 937 

v. Augusta 299 

r. Clement Bros. C. Co. 891 

v. Creviston 83 

v. Heisley 711 

v. Rogers 585 

r. Tripp 722 

Cleveland, C. C. & St. L. Ry. Co. . 

Backus 691 

v. Illinois 851 

Cleveland C. & C. Ry. Co. v, Closser 875 

Clifton v. Cook 929 

Cline v. State 451 

Clinton v. Cedar Rapids, &c. R. R. Co. 797 

v. Draper 208 

v. Englebrect 64 



Clinton v. Phillips 289 

v. St. Louis & I. M. Ry. Co. 869 

Clippinger v. Hepbaugh 197 

Clodfelter v. State 24 

Cloud v. Pierce City 686 

Clough v. Unity 818 

Cloughessey v. Waterbury 363 

Cloyd v. Trotter 683 

Coal Run Co. v. Finlen 706 

Coast Line Ry. Co. v. Savannah 387, 391 

Coates v. Campbell 700 

v. Muse 34 

Coatesville Gas Co. v. Chester Co. 120 

Coats v. Hill 518 

v. New York 176, 286, 295, 881 

Cobb v. Bord 184 

Cobbett v. Hudson 494 

Cobbett's Case 494 

Coburn v. Ellenwood 278 

i7. Harvey 52 

Cochran v. Darcy 412 

v. Jones 895 

. Miller 409 

v. Van Surlay 128, 144, 149, 237, 241 

Coclirane v. Frostburg 302 

Cochran's Case 484 

Cock v. Weatherby 606 

Cockagne v. Hodgkisson 611 

Cocke t7. Halsey 898 

Cockrum v. State 499 

Coddington v. Bispham 413 

Coe v. Errol 690 

v. Schultz 853, 880 

Coffee v. State 447 

Coffey r. Edmonds 911 

v. United States 80 

Coffin v. Coffin 192, 636 

v. Rich 407 

v. State 388 

v. Thompson 901 

v. Tracy 575 

Coffman v. Bank of Kentucky 414 

v. Keightley 331 

Cofrode v. Gartner 38 

Coggswell v. N. Y., &c. R. R. Co. 785 

Coglan v. Beard 941 

Cohen, Ex parte 442 

v. Barrett 202 

v. Cleveland 296 

17. .Hoff 139 

17. Wright 372 

Cohens v. Virginia 26, 29, 103 

Colin, Ex parte 707 

v. Beal 897 

v. Hoffman 409 

v. Kingsley 195 

Coit v. Sutton 690 

Colburn v. Colburn 579 

v. Woodworth 81 

Colby r. Jackson 829 

Coldwater v. Tucker 312 

Cole v. Bedford 333 

y. Black River Falls 897 

v. Cunningham 41 

17. Eastman 752 

t7. La Grange 317, 323, 700 



XXXV111 



TABLE OF CASES. 



Cole v. Medina 

v. Muscatine 

r. Tucker 

v. Wilson 
Coleman, Matter of 

v. Bellandi 

v. Carr 

v. Roberts 

v. Yesler 

Coles v. Madison Co. 
Collamer v. Page 
Collector v. Day 
Colley r. Merrill 
Collier v. Frierson 
Collins v. Collins 

r. Henderson 

v. Hills 

r. Howard 

v. Lean 

v. New Hampshire 

v. Philadelphia 
Colman v. Holmes 
Coloma v. Eaves 
Colony v. Dublin 



Page 

301, 367 
296 
900 
658 
478 
408 
146 
455 
256 

266, 391, 617 
576 

684, 685 
62 
60 

412, 576 

104, 262 

846 

862 

428, 434 
848, 882 

302, 305 
522 

274, 321 
529 



Colorado E. Ry. Co. v. Union Pac. 

Ry. Co. 767, 778, 806 

Colpetzer v. Trinity Church 508 

Colt r. Eves 46, 114 

Coltin v. Ellis 162 

Colton v. Rossi 815 

Columbia v. Guest 745 

Columbia Co. 17. Davidson 324 

v. King 324 

Columbus v. Columbus 268 

Columbus & W. Ry. Co. v. Witherow 786, 

802, 811 

Columbus G. L. &c. Co. v. Columbus 298 

Columbus Ins. Co. v. Curtenius 866 

v. Peoria Bridge Co. 866 

Columbus S. Ry. Co. v. Wright 692 

Col well v. Chamberlin 216 

Comer v. Fulsom 331 

Commercial Bank v. Tola 317, 700 

Commercial Bank of Natchez v. State 392 

Commercial Nat'l. Bk. v. Chambers 16 

Commissioners, &c. v. Aspinwall 167, 321 

v. Bearss 331 

v. Beck with 760 

v. Bowie 814 

v. Cox 324 

v. Duckett 304, 366, 361 

v. Gas Co. 281 

v. Holyoke Water Power Co. 666, 836 

. Little 694 

v. Martin 355 

i'. Mighels 348 

v. Morrison 690 

v. Owen 707 

v. Pidge 866 

v Seabrook 690 

v. Wallace 167 

r. Withers 861 

Commissioners Allegheny Co. v. 

Union Min. Co. 749 

Commissioners Brown Co. v. Stan- 
dard Oil Co. 690 



Page 

Commissioners Calhoun Co. v. Wood- 
stock Iron Co. 396 
Commissioners Dickinson Co. v. 

Hogan 825 

Commissioners Harford Co. v. Hamil- 
ton 485 
Commissioners of Kensington v. 

Philadelphia 346 

Commissioners Ottawa Co. v. Nelson 711 
Commissioners of Revenue v. State 338 
Commissioners Sinking Fund v. Green, 

&c. Nav. Co. 865 

Commissioners of Stanley Co. v. 

Snuggs 195 

Commissioners State Park v. Henry 814 
Commonwealth v. Alderman 467 

v. Alger 830, 878 

v. Amer. Bell Tel. Co. 694 

v. Andrews 177 

r. Anthes 464 

v. Archer 438 

v. Austin 481 

v. Aves 497 

v. Bacon 388, 888 

v. Bailey 388 

v. Bakeman 468 

v. Bean 286 

v. Hearse 886 

v. Bennett 174 

v. Billings 466 

v. Binns 895 

v. Bird 396, 547 

v. Blanding 603, 639 

v. Blood 41 

v. Bonner 448, 449 

v. Boston, &c. Ry. Co. 844 

v. Bowden 469 

v. Breed 772, 865 

v. Brennan 400 

v. Brickett 487 

r. Brooks 286 

v. Brown 718 

v. Byrne 603 

. Certain Liquors 430 

v. Chambers 644 

v. Chapin 752, 861 

v. Charlestown 862 

v. Chase-Davidson Co. 879 

v. Clap 608, 625, 628 

Clapp 246, 846, 849 

Clark 184, 247, 561 

v. Clary 177 

v. Cluley 932 

v. Colton 859 

v. Commissioners, &e. 515 

v. Cook 467 

v. County Commissioners 930 

v. Coyningham 265 

v. Crotty 430 

v. Cullen 392 

v. Cullins 177 

v, Cummings 462 

v. Curtis 444, 445, 446, 450, 800 

v. Dailey 453 

v. Dana 437 

v. Davis (140 Mass.) 287 



TABLE OF CASES. 



XXXIX 



Page 


Page 


Commonwealth v. Davis (162 Mass.) 603 


Commonwealth v. Juanita Coke Co. 740 


v. Dean 174 


v. Keary 886, 887 


v. Del. Div. Canal Co. 706 


v. Kendall 849 


v. Dorsey 382 


v. Kenneson 215 


v. Downing 469 


v. Kimball 247, 437, 616, 644 


v. Drewry 207 


v. King 863 


v. Duane 616, 544 


v. Knapp 446, 464, 474 


v. Duffy 374 


v. Kneeland 671, 672, 673 


v. Dunster 471 


v. Knowlton 52 


v. Eastern B. R. Co. 843 


v. Leach 62 


v. Eddy 437 


v. Leech 190, 938 


v. Edison El. Lt. Co. 680 


v. Lehigh V. R. R. Co. 689, 875 


v. Emery 694 


v. Linn (571 


v. Emminger 936, 940 


v. Little 694 


v. Erie & W. Tr. Co. 392 


v. Locke 163 


v. Erie & Northeast R. R. Co. 271, 


v. Lodge 62 


279, 789, 791 


v. Look 752 


v. Erie R. R. Co. 690 


v. Lottery Tickets 429 


v. Essex Co. 394 


v. Louisville, &c. R. R. Co. 859 


v. Featherstone 619 


v. Mann 388 


v. Fells 468, 469 


. Marshall 616, 631, 544 


v. Fenton 287 


v- Marzynski 859 


v. Ferguson 708 


v. Matthews 285 


v. Fisher 676, 809 


v. Maxwell 237, 246 


v. Fitzpatrick 469 


v. McClelland 906 


t;. Fowler 845 


v. McCloskey 236 


v. Fredericks 174 


v. McCombs 897, 928 


v. Freelove 436 


v. McHale 922, 927 


v. Gage 285 


v. McLane 692 


v. Gallagher 449 


. Me Williams 163, 167, 173 


v. Gamble 389 


v. Meeser 940 


v. Germania L. I. Co. 707 


v. Miller 849 


v. Gilbert 879 


v. Mitchell 445 


v. Goddard 468 


v. Moir 183, 233, 240, 244, 258, 265 


v. Godshalk 636 


v. Moore 237, 253, 709 


v. Graves 375 


v. Morey 446 


v. Green 43, 207, 932 


v. Morgan 448, 450 


v. Griest 60 


v. Morris 628 


v. Hall 40, 382 


v. Mullen 450 


v. Hamilton Manuf. Co. 555, 890 


v. Murphy (165 Mass.) 471 


v. Harman 447 


v. Murphy (166 Mass.) 499 


v. Harmel 690 


v. Myers 437, 690 


v. Hart 468, 497 


v. Nesbit 675 


v. Hartman 242, 261 


v. New Bedford Bridge 411 


v. Hartnett 85 


v. Newburvport 269, 338 


v. Has 675, 859 


v. New York L. E. & W. R. R. 


v. Hawes 41 


Co. 694 


v. Hawkins 467 


v. Nichols 448, 644 


v. Hillside Coal Co. 6C8 


v. Odell 628 


v. Hilton 37 


v. Olds 469 


v. Hinds 430 


v. Painter 166, 167 


>j. Hippie 129 


v. Patch 279, 282, 286, 854 


v. Hitchings 46, 246, 247 


v. Patton 183 


v. Holbrook 851 


. Penn. Canal Co. 758, 838, 839, 840 


. Holder 177 


v. Perry 672, 877 


v. Holt 444 


v. Petty 13 


v. Housatonic R. R. 875 


v. Philadelphia Co. 680 


v. Howe 849 


v. Pittsburg 341 


v. Hoxey 922 


v. Pittsburg, &c. R. R. Co. 565, 757 


v. Hubley 287 


v. Plaisted 287, 334, 335, 665, 894 


v. Hunt 52 


v. Pomeroy 246 


v. Hyneman 859 


v. Porter 464, 481 


v. Intoxicating Liquors 430, 845, 850 


v. Potts 247, 249 


v. Jeandelle 859 


v. Pottsville 740 


v. Jones 133, 144, 403, 471, 937 


v. Preece 446 


v. Judges of Quarter Sessions 166, 167 


v. Putnam 680 



TABLE OF CASES. 



Page 

Commonwealth v. Randall 486 

v. Reed 694 

v. Reeder 931 

v. Richards 451 

v. Richter 783 

v. Roberts 880 

v. Roby 470 

r. Rock 464 

v. Roxbury 263 

v. Roy 284 

v. Ryan 694 

v. Savings Bank 748 

v. Scott 448 

v. Semmes 438 

v. Snelling 658 

v. Snyder 887 

r. Starr 675 



v. Stodder 
v. Stowell 
v. Sturtivant 
v. Taylor 
v. Tewksbury 
v. Towles 
v. Tuck 
v. Tuckerman 
v. Uprichard 
v. Van Tuyl 
. Vaughn 
v. Vrooman 
v. Waite 
v. Waldman 
v. Walter 
v. Ward well 
v. Wells 



283, 285, 860, 888 
469 
445 

446, 446, 879 

830 

37 

467, 468 
446 
178 
464 
467 

886, 889 
882 
860 
895 
626 
924 



v. Westinghouse Air Brake Co. 680 

v. Westinghouse El. & Mfg. Co. 680 

v. White 177 

r. Whitney 591 

v. Wilkins 285 

v. Wilkinson 790 

v. Williams 99, 525 

v. Woelper 912 

v. Wolf 676 

v. Wood 466 

v. Worcester 281, 860 

v. Wright 232 

v. Zelt 846 

Commonwealth's Appeal 740 

Commonwealth Bank v. Griffith 31 

Compagnie F. v. New Orleans 853 

Comstock v. Clearfield 827 

v. Gay 513 

<?onabeer v. N. Y. C. & H. R. Ry. Co. 800 

Concha v. Concha 83 

Concord v. Boscawen 312 

v. Portsmouth Savings Bank 320 

v. Robinson 320 

Concord R. R. Co. v. Greeley 764 

Condemnation of Land, Re 826 

Condict v. Jersey City 305 

Condon v. Galbraith 751 

Cone v. Cotton 683 

v. Hartford 728, 736, 861 

Cone, Ex parte, & Com. Co. v. Poole 179 

Coney v. Owen 553 

Confiscation Cases 617 



Page 

Congdon v. Norwich 363 

Conkey v. Hart 406, 409, 410, 415 

Conk I in v. N. Y., &c. Ry. Co. 783, 786 

v. State 469 

Conlin v. San Francisco 317, 336 

Conneau v. Geis 691 

Conn. Life Ins. Co. v. Spratley 180 

Conn. M. L. Ins. Co. v. Cross 54 

v. Cushman 413 

Conn. Riv. R. R. Co. v. Commis- 
sioners 815 



Connell v. Connell 

Connelly v. State 

Conner, Ex parte 

v. Elliott 

v. New York 



538 
458 
209 
37 
205, 388 



Conners v. Burlington, &c. Ry. Co. 691 
Connolly v. Boston 859 
v. Union Sewer Pipe Co. 561, 562 
Connor v. Green Pond, &c. R. R. Co. 208 
Connors v. Carp River Iron Co. 217 
v. People 449 
Conrad v. Ithaca 356 
Conservators of River Tone v. Ash 278 
Consolidated Channel Co. v. Rail- 
road Co. 771 
Consolidated Coal Co. v. Illinois 661 
v. People 888 
Constitutional Conv., In re 60 
Constitutional Provision, Re 72 
Consumers' Gas Trust Co. v. Harless 814 
Contested Election, Re 900 
Continental Imp. Co. v. Phelps 106 
Contra Costa R. R. v. Moss 778 
Contzen v. United States 12 
Converse, Ex parte 14,22 
Conway v. Cable 526, 527, 529, 545, 546 
v. Taylor's Ex'r 867 
v. Waverly 749 
Conwell v. Emrie 757 
v. O'Brien 279 
Cook v. Burlington 738 
v. Cook 579 
v. Gray 412 
v. Gregg 407, 520 
v. Hart 39 
v. Hill 619, 620 
v. Macon 305 
v. Marshall Co. 661 
v. Moffat 25, 417 
v. Pennsylvania 688, 694, 846 
v. Portland 267 
v. Slocum 729 
v. South Park Com'rs 816, 817 
v. State (26 Ind. App.) 284 
v. State (90 Tenn.) 900 
v. United States 375 
v. Vimont 83 
Cook Farm Co. v. Detroit 340 
Cookerly v. Duncan 531 
Cooley v. Board of Wardens 688, 856, 858 
v. Fitzgerald 190 
v. Freeholders 355 
Coolidge v. Guthrie 764 
v. Williams 566 
Coombs v. Rose 619 



TABLE OF CASES. 



xli 



Cooney v. Hartland 
Coonradt v. Myers 
Cooper, Re 

Ex parte 

v. Barber 

v. Board of Works 

v. Com. 

v. Cooper 

v. Greeley 

v. McJunkin 

v. Newell 

v. People 

v. Stone 

v. Sunderland 

v. Telfair 

v. Williams 
Cooper's Case 



Page 
305 
578 

454, 770 
881 
645 
681 
467 

579, 580 

607, 645 

486 

40 

455, 628, 646 
645 

585, 586 

131, 237, 253 

759, 764 

613 



Cooper Mfg. Co. v. Ferguson 105, 180 
Coosa River Steamboat Co. v. Bar- 
clay 406, 843 
Copas v. Anglo- Amer. Prov. Co. 582 
Cope, Re 739 
Copes v. Charleston 167 
Copp v. Henniker 590, 591 
Copper 17. Major 322 
Corbett v. Bradley 112 
v. McDaniel 937 
Corbin v. Hill 527 
Corfield v. Coryell 37, 574, 693 
Coriell v. Ham 406 
Corley v. State 445 
Corliss, In re 895 
Matter of 932 
v. Corliss 113 
v. E. W. Walker Co. 510 
Cornell v. State 294, 473 
Cornet v. Winton 25, 813 
Corning v. Greene 166 
v. McCullough 407 
v. Saginaw 306 
Cornwall v. Commonwealth 403 
Corrigan, et al., v. Chicago 759 
v. Gage 288 
Corsicana v. White 305 
Corson v. Maryland 694 
Corwin v. Comptroller 220 
v. New York & Erie R. R. Co. 841, 842 
Cory v. Carter 657 
Cosgrove v. Augusta 289 
Costar v. Brush 398 
Coster v. New Jersey R. R. Co. 809 
Gotten v. Ellis 99 
Cotting v. Kansas City 16, 872 
Cottman v. Grace 44 
Cotton v. Commissioners of Leon 167, 

237, 253 

v. Phillips 895 

Cotton Exchange v. Ry. Co. 875 

Cotulla v. Kerr 620 

Couch v. McKee 522 

Cougot v. New Orleans 888 

Coughlin v. People 469 

Coulterville v. Gillen 279 
Council Bluffs v. Kansas City, &c. 

R. R. Co. 875 

Counselman v. Hitchcock 442 



County Commissioners v. Jones 
County Court v. Griswold 
County Treasurer v. Dike 
Court of Appeals, In re 
Courvoisier, Trial of 
Cousins v. State 



Page 
388 
770 
162 
129 
478 
709 



Coutant v. People 
Cover v. Baytown 
Covington v. Bryant 
v. Buffett 
v. East St. Louis 
v. Kentucky 
r. Souihgate 



101, 104, 263 
327 
356 
130 

217, 279 
268, 391, 396 
646, 703, 704, 720 



Covington & C. B. Co. v. Kentucky 857, 
866, 867, 875 

Covington & L. T. R. Co. v. Sanford 397, 

872, 875 

Covington, &c. Ry. Co. v. Piel 761 

Covington St. R. Co. v. Covington, 

&c. R. Co. 800, 802 

Cowan v. McCutchen 625 

v. Milbourn 671 

Coward v. Wellington 620 

Cowdery, In re 482 

Cowen v. West Troy 279 

Cowgill v. Long 643 

Cowles v. Harts 82 

Cowley v. Pulsifer 637 

Cox, Ex parte 133 

v. Bunker 607 

v. Coleridge 443 

17. Cox 580 

v. Lee 656 

v. Louisville, &c. R. R. Co. 316, 791 

v. Mason City, &c. R. Co. 823, 827 

r. State 183 

Coxe 17. Martin 414 

Coxhead v. Richards 611 

Coy, In re 496, 901 

Coyner v. Lynde 676 

Craemer v. Washington 22 

Craft 87. State Bank 62 

Crafts v. Ray 742 

Craig v. Andes 324 

v. Brown 606 

v. Burnett 281, 282 

v. Dimock 685 

v. First Presbyterian Church 881 

v. Kline 864 

v. Missouri 36 

17. Philadelphia 730 

v. Rochester City & Brighton 

R. R. Co. 791, 794 

v. State 454 

w. Werthmueller 850 

Craighead 17. Martin 689 

Cram v. United States 22 

Crandall, Petition of 495 

v. James 80 

17. Nevada 667, 690 

t7. State 37, 574 

Crane v. Meginnis 166, 157, 585 

t7. School District 262 

v. Waters 646 

Crane v. West Chicago P. Com'rs 714 

Cranson v. Smith 13 



xlii 



TABLE OF CASES. 



Page 

Craven v. Winter 614 

Craw v. Tolono 717 

Crawford v. Delaware 296, 784, 785, 802 

v. Dunbar 895, 932 

v. Topeka 290 

v. Wilson 68 

Crawfordsville v. Bond 304 

v. Braden 696 

w. Hays 262 

Crawfordsville, &c. Co. v. Fletcher 92 

Crawsliaw v. Roxbury 310 

Creai v. Keokuk 296, 783 

Crease w. Babcock 165 

Creevy v. Carr 658 

Creighton v. Piper 895 

v. San Francisco 336 

Crenshaw v. Slate River Co. 237, 773 

Creole v. Chicago 722 

Cresap v. Gray 5)35 

Crescent City, &c. Co. v. Butcher's 

Union, &c. Co. 31 

Cressey v. Meyer 524 

Creston v. Nye 440, 454 

Creston Water Works Co. v. Mc- 

Grath 778 
Crichfield v. Bermudez Asphalt P. 

Co. 198 

Grim v. Crim 42, 45 

Crittenden r. White 13 

Crocker v. State 590 

Cromarty v. Boston 363 

Cronan v. Cotting 86 

Crone v. Angell 605 

Cronin v. People 286, 287 

Cronise v. Cronise 156, 403 

Crosby v. Hanover 757 

v. Lyon 743, 744 

v. Warren 286, 884 

Cross, Ex parte 177 

v. Allen 32 

v. Armstrong 42 

v. Cross 680 

v. Hopkins 265 

Crossley v. California 26, 467 

Grossman v. United States 12 

Croswell's Case 616 

Crouch, Ex parte 495 

v. Hall 62 

Crow v. Bowlby 80 

Crowder v. Sullivan 321 

Crowell v. Hopkinton 327, 331, 333, 701, 

704 

v. Randell 30 

Crow ley v. Burlington, &c. Ry. Co. 840 

v. Cliristensen 885 

v. Copley 736, 868 

v. State 253 

v. West 283 

Crown Cork & Seal Co. v. State 684 

Croy v. Epperson 689 

Crozier v. Cudney 434 

Cruikshanks v. Charleston 606 

Crumlisk's Admr. r. Central Imp. Co. 42 

Crump v. Morgan 65 

Crutcher v. Commonwealth 694 

v. Kentucky 692 



Page 

Cubbison . McCreary 676 

Cubreth, Ex parte 39 

Cuddy, Ex parte 496 

Cullen v. Carthage 272 

Crystal Spring L. & W. Co. v. Los 

Angeles 31 

Cullen v. N. Y., N. H. & H. R. Ry. 

Co. 781 

Culver v. Streator 306 

Cumberland v. Willison 305 

Cumberland, &c. R. R. Co. v. County 

Court 231, 529 

Cumberland & P. R. Co. v. State 692, 

706 
Cumberland Tel. & T. Co. v. United 

El. Ry. Co. 803 

Cummerford v. McAvoy 644 

Gumming v. Police Jury 717 

v. Board of Education 15 

Cummings v. Ash 755 

v. Howard 537 

v. Missouri 62, 370, 372, 374, 376 

v. National Bank 707,711 

v. Peters 769 

v. Win go 38 

Cunningham v. Brown 629 

v. Macon, &c. R. R. Co. 24 

r. Neagle 28 

v. State 437 

Cupp v. Seneca Co. 582, 815 

Curran v. Arkansas 36 

v. Sliattuck 813, 817 

Currie v. Waverly & N. Y. B. Ry. Co. 827 

Currier v. Marietta & Cincinnati R. 

R. Co. 762, 763 

Curry v. Walter 638 

Curryer v. Merrill 262 

Curtis, Ex parte 14, 456 

v. Curtis 606 

v. Gibbs 42, 583 

v. Gill 591 

v. Hubbard 425 

v. Leavitt 416, 517, 537 

v. Mussey 622 

v. State 440 

v. Whipple 243, 703, 705, 772 

v. Whitney 406, 409 

Cushman v. Smith 813 

Cusic v. Douglas 408, 515 

Cusick's Appeal 906 

Cutlip v. Sheriff 209, 213 

Cutts v. Hardee 414 

Cuyler v. Rochester 575 

Cypress Pond Draining Co. v. Hooper 694, 

699, 702 



D. 



Dabbs v. State 
Dada v. Piper 
Daggett v. Colgan 

v. Hudson 
Dahnke v. People 
Dailey v. Reynolds 

v. State 



886 
630 
696 
906 

130, 455 
607 
895 



TABLE OF CASES. 



xliii 



Page 

Dailey v. Superior Ct. San Francisco 456 

v. Swope 736, 745 

Daily Post Co. v. McArthur 650 

Dakin r. Hudson 585 

Dalby v. Wolf 265 

Dale v. Com. 161 

v. Irwin 903, 904, 907 

v. Medcalf 639 

r. State 464 

v. The Governor 396, 547 

Dallas Lumbering Co. v. Urquhart 769 

Dalrymple v. Mead 861 

Dalton, Re 66, 891 

v. State . 189 

v Water Commissioners 760 

Daly v. State 555 

Damour v. Lyons City 304 

Dana's Case 460, 591 

Dancaster v. Hewson 631 

Dane County v. Dunning 690 

Danforth v. Groton Water Co. 629 

v. State 437 

Daniel Ball, The 864 

Daniells v. Watertown 531 

Daniels v. Clegg 86 

v. Hathaway 306 

Danks v. Quackenbush 406 

Dantzer v. Indianapolis U. Ry. Co. 781 

Danville v. Pace 86, 237, 241, 242, 515, 

529, 537 

v. Shelton 709, 740 

Darcy v. Allain 401, 562 

D'Arcy v. Ketcham 42 

Dare Co. v. Currituck Co. 268 

Dargan v. Mobile 357 

Darling v. Boesch 220 

v. Gunn 712 

v. Rogers 182 

Darlington v. New York 346 

v. United States 756 

v. Ward 287 

Darrington v. State Bank of Alabama 35 

Darrow v. People 183, 894 

Darst v. People 283 

Dart v. Houston 389, 393 

Dartmouth College v. Woodward 175, 

268, 316, 343, 360, 388, 392, 403, 602, 836 

Dash v. Van Kleek 97, 134, 137, 374, 617, 

629 

Datz v. Cleveland 159 

Daubman v. Smith 206 

D'Auvilliers v. De Livaudais 579 

Davenport v. Barnett 80 

v. Mayor 895 

v. Richmond 295, 881, 883 

v. Stevenson 301 

v. Young 148 

Davenport, &c. Co. v. Davenport 278 

David v. Portland Water Com. 334 

Davidson v. Boston & Maine R. R. 

Co. 781, 782 

v. Briggs 86 

v. Jennings 67 

. Lawrence 623 

v. New Orleans 20, 505, 506, 722, 735, 

868 



Da vies, In re 

v. McKeeby 

v. Morgan 

Daviess Co. v. Dickinson 
Davis v. Auld 

v. Bank of Fulton 

v. Boget 

v. Burke 

v. Brown 

v. Davis 

v. Dubuque 

v. Duncan 

v. Elmira Sav. Bk. 



Page 
482 

99, 509, 518 
281 
323 
883 
204 
663 

22 
605 

83 
721 
628 

27 



v. Gaines 
v. Gray 
v. Guilford 
v. Hambrick 
v. Holbrook 
v. Jackson 
v. Litchfield 



118, 182, 194, 701, 722 
386, 389 
358 
900 
924 
302 
732 



v. Lynchburg 

v. Massachusetts 

v. McNees 

v. Menasha 

v. Minor 

v. Montgomery 

v. New York 

v. O'Ferrall 

v. Petrinovich 

v. Reed 

v. Richardson 

v. Rupe 

v. Shepstone 



722, 730 
293, 603 
630 
659 
521 
300 

295, 299 
514 
289 
294 
685 
413 
626 



v. State 158, 205, 212, 217, 241, 247, 
451. 538, 655 

v. State Bank 146, 532, 638 

v. St. Louis Co. Com'rs 571 

v. Texas 22, 46 

v. Wood 82 

v. Woolnough 210 

Davis's Lessee v. Powell 553 

Davison v. Duncan 651 

i: Johonnot 146, 558 

Davock v. Moore 335 

Dawkins v. Paulet 630 

v. Rokeby 631 

Dawson v. Aurelius 305 

v. Coffman 52 

v. Duncan 644 

v. Holt 645 

v. Lee 657 

v. Shaver 237 

v. State 379 

Day, Re 130, 890 

v. Gallup 30 

v. Green 860 

v. Jones 903 

v. Kent 929 

v. Munson 87 

v. Savadge 692 

v. Stetson 194 

Dayton v. Quigley 288 

Dayton Coal & I. Co. v. Barton 

Dayton Mining Co. v. Seawell 771 

Deal v. Mississippi Co. 697 

Dean v. Ann Arbor St. Ry. Co. 803 



xliv 



TABLE OF CASES. 



Page 

Dean v. Borchsenius 627, 642 

v. Gleason 645, 743 

p. Sullivan R. R. Co. 808, 819 

v. Willamette Bridge Co. 456 

Dean of St. Asaph, Trial of 479 

Deansville Cemetery Association, 

Matter of 770, 775 

Dearborn v. Boston, C. & M. R. R. 

Co. 312,825,826 

Deaton v. Polk Co. 822 

De Ben v. Gerard 281 

De Benneville v. Philadelphia 826 

De Berry v. Nicholson 907 

Debevoise v. New York, L. E. & W. 

R. R. Co. 181 

Deblois v. Barker 860 

Debolt v. Ohio Life Ins. & Trust Co. 176 
De Camp v. Eveland 257 

v. Hibernia R. R. Co. 215, 766 

Decatur v. Fisher 358 

Decatur Co. v. Humphreys 760 
De Chaetellux v. Fairchild 78, 132, 137, 

152 

Decker v. Baltimore, &c. R. R. Co. 25 
v. Gay lord 618 

Decorah v. Dunstan 285 

De Cordova v. Galveston 630 

Dedham v. Natick 485 

Deeds v. Sanborn 721 

- Deems v. Baltimore 878, 882 

r. Peterson 698 

De Giacomo, In re 383 

De Groff v. St. Paul, &c. R. R. Co. 387 
Dejarnette v. Commonwealth 4fi5 

De Jarnette v. Haynes 232 

De Krafft v. Barney 493 

Delafoile v. State 425 

De Lamar's Gold M. Co. v. Nesbitt 31 
Delancey v. Insurance Co. 665 

Delano's Case 482 

Delaplaine v. Cook 526 

Delaware & H. Canal Co. v. Mahlen- 

brock 180 

Delegal v. Highley 637, 638 

De Lima v. Bidwell 12 

Dell v. Marvin 67 

Dells v. Kennedy 906 

Delmonico v. New York 362 

Deloach v. Rogers 932 

Delphi o. Evans 296, 761 

Demaree v. Scales 894 

De Mill v. Lockwood 612 

Demoss v. Newton 524 

Dempsey r. People 452 

Den v. Bolton 661 

v. Downam 635 

v. Dubois 92 

v. Schenck 92 

Denham v. Holeman 209 

Denison v. Hyde 683 

Denn v. Reid 91 

Dennett, Petitioner 162 

Dennick v. Railroad Co. 181 

Denning c. Corwin 685 

Dennis v. Coughlin 911 

v Moses 669, 886 



Page 

Dennis v. State 905 

Dennis Long & Co. v. Louisville 763 

Dennison School District v. Padden 262 

Denny, Re 202 

v. Ashley 583 

v. Mattoon 161, 646 

v. Reynolds 80 

. State 127 

v. White 252 

Dent v. West Virginia 19, 376, 509 

Denton v. Jackson 298, 312, 348 

Dentzel v. Waldie 639 

Denver v. Bach 289 

v. Bayer 811 

v. Capelli 302 

v. Coulehan 722 

v. Hayes 168 

v. Knowles 731 

. Rhodes 304, 362 

v. Vernia 296, 812 

Denver Circle R. Co. v. Nestor 216, 811 

Denver City Irrig. Co. v. Middaugh 826 

Denver City Ry. Co. v. Denver 718 

Denver & N O. R. R. Co. v. Lamborn 816 

Denver & R. G. Ry. Co. v. Bourne 81 1 

v. Griffith 827 

v. Denver, &c. Co. 807 

Depew v. Board of Commissioners 861 

v. Trustees 55, 865, 867 

De Pew v. Robinson 606 

Derby v. Derby 444, 680 

Derby Turnpike Co. v. Parks 237 

De Saussure v. Gaillard 24 

Deskins v. Gose 263 

Des Moines v. Gilchrist 271 

Des Moines C. R. Co. v. Des Moines 291 

Desmond v. Dunn 183 

Desnoyer v. Jordan 513 

Detmold v. Drake 251 

Detroit v. Beckman 302, 303 

v. Beecher 822 

v. Blackeby 366 

v. Chapin (108 Mich.) 220 

v. Chapin (112 Mich.) 731 

v. Corey 356, 360 

v. Daly 824 

v. Detroit Cit. St. Ry. Co. 383, 836 

v. Detroit & H. P. R. Co. 392, 394, 

839 

v. Lewis 720 

f. Martin 259 

v. Osborne 38 

r. Parker 714 

v. Rentz 195, 719 

v. Rush 900 

Detroit City St. Ry. Co. v. Detroit 

(110 Mich.) 297 

v. Com. Coun. Detroit (125 Mich.) 693 

v. Detroit Ry. Co. 299 

Detroit Free Press v. McArthur 650 

Detroit Ry. Co. v. Guthard 30 397 

Detroit & S. P. R. Co. v. Detroit ' 777 

Detroit, Grand Haven, & M. Ry. Co. 

v. Grand Rapids 715 

Dettenhofer v. State 473 

De Turk v. Commonwealth 121 896 



TABLE OF CASES. 



xlv 



De Varaigne v. Fox 
Dever v. Cornwall 
Devin v. Scott 
Devlin v. Brady 
Devon Witches, Case of 
De Voss v. Richmond 
Devoy v. New York 
Devries v. Conklin 

r. Phillips 

Dew v. Cunningham 
De Walt's Appeal 
De Walt v. Bartley 
Dewar v. People 
Dewe v. Waterbury 
Dewey v. Des Moines 

v. Detroit 

Dewhurst v, Allegheny 
De Wolf v. Rabaud 
Dexter v. Boston 
Dial v. Holter 



Page 
809 

632, 749, 751 
850 
198 
444 
321 
99, 257 

95 

449 

200 

885 

899, 900 

55 
620 

21 

358 

251, 554 

33 
714 
619 



Diamond Match Co. v. New Haven 757 
Dibdin v. Swan 646 

Dibrell v. Lanier 185 

Dick v. McLaurin 588 

Dickens's Case 481 

Dickenson v. Fitchburg 822, 823, 824 
Dickerman v. Duluth 784 

Dickerson v. Franklin 726 

Dickey v. Hurlburt 930 

v. Reed 144 

r. Tennison 765, 818 

Dickinson v. Hayes 80 

Dicks v. Hatch 575 

Dickson v. Dickson 156, 181 

v. People 895 

Dieffendorf v. Ref. Cal. Church 661 

Dietriclis v. Lincoln, &c. R. R. Co. 754 
Diggins v. Brown 732 

Dike v. State 560 

Dikeman v. Dikeman 412, 413 

Dill, In re 496 

Dillard v. Collins 610 

Dillingham v. Hook 403 

v. Snow 277, 749 

v. State 458 

Dimes v. Proprietors of Grand Junc- 
tion Canal 692, 693, 595 
Dingey v. Paxton 523, 627 
Dingley ?;. Boston 770, 809 
Directors, &c. v. Burton 262 
Directors of the Poor v. School Direc- 
tors 695 
Dishon v. Smith 275, 909, 925, 929, 935, 

937 

District Attorney, Re 895 

District of Columbia v. Washington 

Gas Light Co. 200 

District Township v. Dubuque 89, 92, 

100, 110 

Ditson v. Ditson 579, 680, 584 

Dively v. Cedar Falls 320, 692 

Divine v. Commissioners 183 

Division of Howard Co. 201, 210, 267 

Dixon v. Baker 304 

v. Orr 934, 940 

t>. Parmelee 478 



Page 

Dixon v. People 68, 455 

v. Poe 886 

Dixon Co. v. Field 322 

Doane t>. Lake Street El. Ry. Co. 803 
Dobbins v. Commissioners of Erie 

Co. 591, 682 

v. State 469 

Dobyns v. Weadon 930, 940 

Dodd v. Thomas 607 

Dodge v. Coffin 43 

v. County Commissioners 826 

v. Granger 305 

v. Gridley 217 

v. Mission Township 185 

v. Woolsey 25, 62, 176, 395 

Doe v. Beebe 755 

r. Braden 25, 237 

v. Douglass 54, 146, 237 

v. McQuilkin 749 

Dogge v. State 454 

Dole . Lyon 644 

v. Van Rensselaer 628 

Doles v. State 469 

Dominick v. Bowdoin 160 

Doriahoe v. Richards 263, 66-3 

Donahue v. Will Co. 159 

Done v. People 471 

Donkle v. Kohn 677 

Donnaher's Case 789, 791 

Donnell v. State 869 

Donnelly v. Decker 868 

v. State 452 

v. Tripp 305 

Donnersberger v. Prendergast 206, 212 

247 

Donoghue v. Philadelphia 346 

Donohugh v. Roberts 215 

Dooley v. Sullivan 356 

v. United States (182 TJ. S.) 12 

v. United States (183 U. S.) 12 

Dooling v. Budget Pub. Co. 606 

Doon Township v. Cummins 323, 324 
Doonan v. Glynn 82 

Doran v. De Long 190 

Dore v. Milwaukee 296 

Dorgan v. Boston 717 

Dorfan v. East Brandywine, &c. R. 

R. Co. 825 

Dorlin v. Shearer 663 

Dorman v. Jacksonville 2915 

Dorr, Ex parte 491, 493 

Dorrance Street, Matter of 860 

Dorsey, Matter of 99 

v. Dorsey 138, 560, 579 

v. Gilbert 146 

Dorsey's Appeal 209, 212 

Dortic v. Lockwood 691 

Doss v. Commonwealth 464 

Dothage v . Stuart 653 

Dotton v. Albion 358 

Doud v. Mason City, &c. Ry. Co. 822 

Dougherty v. Austin 164 

v. Commonwealth 453 

Doughty v. Hope 114, 581 

v. Somerville & Eastern R. R. Co. 823, 

825 



xlvi 



TABLE OF CASES. 



Page 

Douglas v. Byrnes 778 

v. Freeholders, &c. 91 

r. Kentucky 400, 885 

Douglas Co. v. Bolles 321 

Douglass v. Pike Co. 36, 405 

v. Placerville 266, 272 

v. Turnpike Co. 790 

Dove v. School District 

Dover v. Portsmouth Bridge 865 

Dow v. Beidelman 18, 218, 874 

v. Norris 237, 253, 256 

Dow's Case 39 

Dowdell r. State 217 

Dower v. Kichards 

Dowling v. Lancashire Ins. Co. 1(54 

v. State 382 

Dowling's Case 458 

Downes v. Bidwell 12 

Downing v. Porter 430 

v. Wilson 607 

Downs v. Bowdoin Sq. Bapt. Soc. 661 

Doyle v. Continental Ins. Co. 258 

v. Hallam 80 

v. O'Doherty 630 

>: Raleigh 895 

Drady v. Des Moines, &c. Co. 404 

Drainage of Lands, Matter of 770 

Draining Co. Case 735, 737 

Drake v. Drewry 908 

v. Gilmore 629 

v. Granger 42 

v. Jordan 876, 381, 617 

v. Phil., &c. R. R. Co. 842 

Draper v. United States 26 

Drath v. Burlington, &c. R. R. Co. 816 

Drehman v. Stifle 870, 371, 411, 617 

Drennan v. People 86 

Dressen v. Brameier 661 

Drew v. Davis 748, 749 

v. Hilliker 868 

Dreyer v. Illinois 469 

v. People 689 

Drinkall y. Spiegel 39 

Driscoll v. Taunton 827 

Dritt v. Snodgrass 263 

Dronberger v. Reed 816 

Druliner v. State 91 1 

Drummond v. Leslie 607 

Dryden v. Swinburne 932 

Dry fuss v. Dridges 114 

Duanesburgh v. Jenkins 340 

Dubois v. McLean 147 

Dubuque Co. v. R. R. Co. 256, 324 

Ducat o. Chicago 37 

Duche" v. Voisin 682 

Duchess of Kingston's Case 80 

Dudley v. Mayhew 676 

Duffield v. School District 880 

Duffy v. Dubuque 302, 362 

v. Hobson 685 

Dugan v. Rollins 84 

v. State 869 

Duke v. Ashbee 924 

v. Rome 804 

Dulany's Lessee v. Tilghman 637, 638 

Dull v. Blackman 40 



Page 

Dullam v. Willson 55, 159 
Duluth & I. R. Ry. Co. v. St. Louis 

Co. 739 

Duluth & W. Ry. Co. v. West 828 
Dunbar v. Boston & P. Ry. Co. 

v. San Francisco 757 

Duncan v. Barnett 408 

r. Lynchburg 306 

v. McCall 32 

r. Missouri 22, 374 

v. Thwaites 638, 640, 657 

Duncombe v, Daniell 623 

v. Prindle 194, 208 

Dunden v. Snodgrass 631 

Dunham v. Anders 617 

v. Chicago 743 

v. Cox 707 

v. Hyde Park 296 

. Powers 630 
v. Rochester 271, 281, 284, 285, 291 

Dunlap v. Glidden 629 

v. State 547 

v. Toledo, &c. Ry. Co. 617, 826 

Dunman v. Bigg 611 

Dunn v. Adams 62 

v. Burleigh 668 

v. City Council 780 

v. Com. 286 

v. Sargeant 616 

v. State 452 

v. Winters 619 

Dunne v. People 13 

Dunnovan v. Green 819, 893 

Du Page Co. v. Jenks 98 

v. People 929 

Dupy v. Wickwire 137 

Durach's Appeal 266, 710, 742 

Durant t 1 . Essex Co. 85 

v. Kauffman 704, 721 

v. People 450 

Durein v. Pontius 210 

Durham v. Lewistown 137, 237, 659 

Durkee v. Janesville 208, 660 

v. Kenoslia 30(5 

Durkin v. Kingston C. Co. 67 

Duson v. Thompson 941 

Duverge's Heirs v. Salter 216 
Dwenger v. Chicago, &c. Ry. Co. 797 

Dwyer v. Goran 80 

v. Gulf C. & S. F. Ry. Co. 853 

Dyckman v. New York 686 

Dye v. Cook 409 

Dyer v. Bayne 91 

v. Morris 607 

v. State 223 
t>. Tuscaloosa Bridge Co. 168, 566 

Dykes, Ex parte 439 



E. 

Eagle Ins. Co. v. Ohio 838 

Eakin v. Raub 101 

Eames v. Savage 364, 506 

w. Whittaker 619 

Earle v. Board of Education 183 



TABLE OF CASES. 



xlvii 



Earle v. Con way 

v. Grant 

v. Pennsylvania 

v. Picken 
Earley's Appeal 
Easley v. Morse 
Eason v. State 



Page 

26 

478 

26 

444 

272 

611 

253 



East & West India Dock, &c. Co. v . 

Gattke 819 

East Brandywine, &c. R. R. Co. v. 

Ranck 822 

East End St. Ry. Co. v. Doyle 803 

Eastern Building & L. Ass'n v. Well- 
ing 30 
Eastern R. R. Co. v. Boston, &c. R. 

R. Co. 398, 399 

Easthampton v. Hampshire Co. 

Com'rs 760, 806 

East Hartford v. Hartford Bridge Co. 295, 

347, 390 

East Kingston v. Towle 628 

East Lincoln v. Davenport 322 

Eastman v. Dearborn 583 

v. McAlpin 202 

v. Meredith 303, 305, 348, 355 

v. State 237, 890 

East Norway Lake Ch. v. Froislie 661 

East Oakland v. Skinner 274, 320 

Easton Bank v. Commonwealth 396 

East Portland v. Multnomah Co. 711 

East Saginaw Salt Manuf. Co. v. 

East Saginaw 395, 396, 402, 547 

East St. Louis v. East St. Louis, &c. 

Co. 311 

v. Maxwell 217 

v. O'Flynn 812 

v. Trustees 710 

v. Wehrung 294, 710 

v. Witts 339 

East St. Louis Com. Ry. Co. v. East 

St. Louis, &c. Co. 806 

East Tenn. V. & G. R. Co. . Frazier 392 

Eaton, Matter of 495 

v. Boston, &c. R. R. Co. 757, 777, 

783, 786, 788, 826 

v. Brown 900 

v. Walker 211 

Echols v. State 937 

v. Staunton 764 

Eckhart v. State 249 

Eddings v. Seabrook 781, 785 

Eddy v. Capron 198 

Eden v. People 691, 837 

Edgecombe v. Burlington 770 

Edgerly v. Swain 606 

Edgerton v. Goldsboro Water Co. 272 

v. Hart 687 

Edgewood R. R. Co.'s Appeal 764, 771 

Edison Gen. El. Co. v. Canadian P. 

N. Co. 178 

Edmonds v. Ban bury 906 

Edmunds v. Herbrandson 182 

Edmundson v. Pittsburgh, &c. R. R. 

Co. 810, 812 

Edson v. Edson 41 

Edwards, In re 440 



Edwards v. Commonwealth 
v. Davenport 
v. Elliott 
v. Jagers 
v. James 
v. Johnson 



Page 

160 

35 

46 

392 

114 

413 



v. Kearzey 407, 408, 409, 414 

v. Pope 147, 149 

v. State 458 

v. Williamson 406 

Edwards's Lessee v. Darby 104 

Eells v. People 247, 250 

Effinger v. Kenney 412 

Egerer v. N. Y. C. & H. R. Ry. Co. 801 

Eggleston v. Doolittle 661 

Egyptian Levee Co. v. Hardin 717, 735, 

868 

Ehlers v Stoeckle 607 

Eichels L: Evansville, &c. Co. 271, 795 

Eidemiller v. Wyandotte 761 

Eikenberry v. Edwards 690 

Eikhoff v. Gilbert 620 

Eimer v. Richards 80 

Eingartner v. Illinois Steel Co. 38 

Eisenbach v. Hatfleld 781 

Eitel v. State 182, 225 

Elam v. Badger 611 

Elbin v. Wilson 927 

Elder v. Barnes 861 

v. Reel 679, 580 

Eldredge v. Trezevant 26 

Eldridge, Matter of 481 

v. Kuehl 623, 751 

v. Smith 757, 766 

Election Law, Matter of 923 
Electric Improvement Co. v. San 

Francisco 288 

Elgin v. Eaton 296 

v. Kimball 304 

Eliason v. Coleman 895 

Elijah v. State 469 

Eliot v. McCormick 683 
Elizabethtown, & P. R. R. Co. v. 

Thompson 791 

Elk v. Wilkins 901 

Elk Point v. Vaugn 279 

Ellerbee v. State 441 

Ellett v. Commonwealth 403 

Elliot v. Ailsbury 607 

Elliott v. Detroit 164 
v. Fairhaven & Westfield R. R. 

Co. 794 

v. People 473 

v. Philadelphia 305 

v. Wohlfrom 680 

Ellis v. Davis 43 

v. Frazier 184, 708 

v. Jones 407 

v. May 900, 912 

v. Pacific R. R. Co. 761 

v. State 446, 567 

Ellison v. Barnes 1MO 

Ellsworth v. Chicago & I. W. Ry. Co. 826 

Ellyson, Ex parte 937 

Elmendorf v. Carmichael 139 

v. New York 114 



xlviii 



TABLE OF CASES. 



Elmendorf v. Taylor 
Elmwood r. Marcy 
Else v. Smith 
Elston v. Piggott 
Elwell v. Shaw 
Ely v. Holton 

v. Niagara Co. 

v. Thompson 
Embury v. Conner 
Emerick v. Harris 
Emerson v. Atwater 
Emert v. Missouri 
Emery v. Gas Co. 

v. Lowell 

v. Mariaville 

v. Reed 
Emery's Case 

Empire City Bank, Matter of 
Emporia v. Soden 
Encking v. Simmons 
Enfield v. Jordan 



Page 
33 

47, 320 
429 

23, 180 
748, 749 
530 

346, 884 
247, 257, 499 
232, 251, 764, 780 
591 
84, 86 
689, 693 
717 
308 
320 
86 

193, 442 
581, 582 



807, 808 

108 

34 



Enfield Toll Bridge Co. v. Hartford 

& N. H. R. R. Co. 398 

Engle w. Shurtz 517, 544 

English v. Chicot Co. 272 

v. Dickey 937 

v. New Haven, &c. Co. ' 549 

v. Oliver 194 

Enos v. Chicago, &c. Ry. Co. 797 

Ensign v. Barse 209, 627 

Ensworth v. Albin 183, 906, 907 

Enterprise v. Smith 211 

Enterprise Ditch Co. v. Moffitt 394 

Entinck v. Carrington 428, 434 

Epping v. Robinson 687 

Equator Co. v. Hall 33 

Equitable Life A. S. v. Clements 834 

Equity G. & T. Co. v. Donahoe 212, 257 

Erb v. Morasch 15, 859 

Erber v. Dun 611 

Erie Co. v. Com'rs Water- Works 695 

v. Erie 120, 695 

Erie R. R. Co. v. Commonwealth 396 

v. New Jersey 690 

v. Pennsylvania 176 

Erie & N. E. R. R. Co. v. Casey 149 

Erlinger v. Boneau 166, 16"7, 174, 210 

Ernst o. Kunkle 730 

Erskine v. Nelson Co. 535 

Ervine's Appeal 132, 149, 150, 244, 502, 

503 

Esberg-Gunst Cigar Co. v. Portland 306 
Escanaba Co. v. Chicago 65, 688, 866 
Eshelman v. Chicago, &c. Ry. Co. 688, 690 
Esmon v. State 470 

Essex Co. v. Pacific Mills 106 

Essex Public Road Bl. v. Skinkle 268 
Essex Witches, Case of 444 

Este v. Strong 82 

Estep v. Hutchman 146, 148 

Estea v. Owen 719 

Esty v. Westminster 383 

Etheredge v. Osborn 80 

Bthridge v. Sperry W. & G. 29, 32 

Eufaula v. McNab 271 

Eureka Basin, &c. Co., Matter of 766, 770 



Page 

Eureka Springs Ry. Co. v. Timmons 62 
Eustis v. Parker 316 

Evans v. Brown 

v. Montgomery 374, 406 

v. Myers 105 

v. Osgood 275 

v. Phillipi 97, 182 

v. Populus 388 

v. Sliarpe '209 

Evansville v. Dennett 322 

v. Miller 883 

v. Senhenn 300 

v. State 158, 334, 894 

Evansville, &c. R. R. Co. v. Dick 786 

Evansville & R. Ry. Co. v. Swift 827 

Evening News v. Tryon 650 

Everett v. Council Bluffs 883 

v. Marquette 884 

Evergreen Cemetery v. New Haven 770 

Everhart v. Holloway 583 

Evernham v. Hulit 202, 212, 216 

Eviston v. Cramer 629 

Ewing v. Alabama & C. Ry. Co. 763 

v. Filley 929, 938 

v. Hoblitzelle 183, 206 

v. Orville M. Co. 121 

v. School Directors 262 

Excelsior Mfg. Co. v. Keyser 544 

Exchange Bank v. Hines 247, 707, 711 

Executive Officers, Election of 938 

Express Printing Co. v. Copeland 628 

Exuiu v. State 13 

Eyre v. Jacob 253 

Ezekiel v. Dixon 89 



F. 



Facey v. Fuller 686, 587 

Fadness v. Braunborg 660, 661 

Fagg, Exparte 281 

Fahey v. State 203, 706 

Fahr r. Hayes 611 

Fair v. Philadelphia 302 

Fairchild v. Adams 619, 627 

v. Lynch 83 

v. St. Louis 812 

Fairfield v. Gallatin 33 

v. McNany 80 

v. Ratcliffe 717 

Fairhurst v. Lewis 485 

Fairman v. Ives 620, 648 

Falconer v. Campbell 34, 376 

v. Robinson 216 

Fales v. East Hampton 827 

v. Wadsworth 625 

Falk, Exparte 118,183 

Fall v. Hazelrigg 85, 106 
Fallbrook Irr. Dist. v. Bradley 713, 714, 

768, 774 

Falvey, In re 193, 495 

Fanning . Gregorie 867 

v. Krapfl 687 

Fargo v. Michigan 688 

Faribault v. Misener 104 
Farist Steel Co. v. Bridgeport 768, 782 



TABLE OF CASES. 



xlix 



Farley v. Dowe 

Farm Ins. Co. v. Carpenter 



Page 
408 

134, 253, 
582 

Farmers' Loan & T. Co. v. Funk 122 
v. Lake St. El. Ry. Co. 25 

Farmers' & Mechanics' Bank r. Butch- 
ers' & Drovers' Bank 321, 323 
17. Smith 104, 253, 416 

Farneman 17. Mt. Pleasant Cem. 

Ass'n 768, 770 

Farney v. Towle 30 

Farnharu 17. Pierce 423 

Farnsworth 17. Lime Rock Ry. Co. 767 

i7. Storrs 619 

17. Vance 414 

Farnsworth Co. v. Lisbon 163, 740 

Farnsworth Lumber Co. v. Fairley 747 

Farnum v. Concord 355 

v. Johnson 166 

Farr v. Rasco 644 

. Sherman 95 

Farrar v. Clark 523 

v. St. Louis 717, 730 

Farrell v. West Chicago P. Co. 714, 731 

Farrelly . Cole 74 

Farrington v. Tennessee 395, 396, 738 

v. Turner 930 

Farwell v. Des Moines B. M. Co. 721 

Fausler v. Parsons 907 

Fawcett v. Charles 637 

17. Clark 606 

17. Fowliss 686, 587 

17. York & North Midland R. R. 

Co. 841, 842 

Fayetteville 17. Carter 283 

Fearing v. Irwin 548, 781 

Fechheimer 17. Washington 52 

Feck i7. Bloomingdale 174 

Fehr v. Schuylkill Nav. Co. 826 

Feibleman v. State 99, 205 

Feige v. Mich. Cent. R. R. Co. 139 

Feineman v. Sachs 178 

Feldman v. City Council 317, 700 

Felix v. Schwarnweber 30 

17. Wallace Co. Com'rs 131 

Fell v. State 169, 174, 400 

Fellows v. New Haven 296 

v. Walker 700 

Felton's Case 442 

Fenelon v. Butts 928 

Fennell v. Bay City 280 

Fenton v. Garlick 42, 683 

17. Scott 915, 941 

w. Yule 205 

Fenwick i?. Gill 553 

Ferguson v. Landram 333, 554, 697, 705 

17. Selma 884 

17. Snohomish 721 

v. Williams 538 

Fernandez, Ex parte 495 

Fernstler o. Siebert 661 

Ferraria v. Vasconcellos 660, 661 

Ferrell 17. Commonwealth 177 

Ferrelle, In re 41 

Ferrenbach v. Turner 880 

Ferris 17. Bramble 766 



Page 

Ferry v. Campbell 506, 528, 644 

Fertich v. Michener 263 

Fertilizing Co. v. Hyde Park 400, 836, 853, 

883 884 

Fetter, Matter of 39 

Ficklen v. Shelby Tax Dist. 694 

Fidelity & C. Co* 17. Allebone 886 

Fidelity & D. Co. v. United States 453 
Fidelity M. L. Ins. Ass'n v. Mettler 563, 

564 

Field v. Barling 784 

v. Clark 247 

u. Des Moines 272, 757 

v. Gibbs 42 

17. People 98, 160 

Fielden v. Illinois 16 

Fields v. Highland Co. Com. 308, 744 

v. Osborne 900 

Fifield i7. Close 684 

i7. Phoenix 302 

Figg i7. Thompson 289 

Filber v. Dauhterman 605 

Finch i7. Riverside & A. Ry. Co. 803 

Finlayson v. Peterson 532 

Finney v. Boyd 80 

Fire Department v. Helfenstein 37, 710 

t7. Noble 37 

v. Wright 37 

Firemen's Association v. Lounsbury 208, 

209 

First Natl. Bk. v. Ayers 32, 682 

v. Chehalis Co. 32, 682 

17. McGwire 693 

17. Merchants' National Bank 433 
v. Price 181 

First National Bk. Rock Springs v. 

Foster 458 

First Natl. Bk. Wellington v. Chap- 
man 682 
First Parish, &c. v. Middlesex 822, 825 
. Stearns 893, 932, 933 
First Pres. Soc., Matter of 661 
First Ref. Pres. Ch. v. Bowden 660 
Fischli n. Cowan 80 
Fish v. Collens 932 
v. Kenosha 324 
Fishburn v. Chicago 290 
i7. Chicago M. & St. P. Ry. Co. 28 
Fisher v. Boston 301 
i7. Deering 85 
t7. Dudley 900 
v. Haldeman 33 
v. Hildreth 924 
17. Horricon Co. 772 
v. McGirr 246, 431, 850, 881 
t7. Wineman 673, 583 
Fisher's Lessee v. Cockerell 30 
Fisher's Negroes v. Dobbs 630 
Fishkill r. Fishkill & Beekman Plank 

Road Co. 207 

Fisk, Ex parte 45 

v. Jefferson Police Jury 62, 383, 38M 

v. Kenosha 542 

t7. Soniat 

Fiske v. Framingham Manuf. Co. 772 
v. Hazzard 327 



1 



TABLE OF CASES. 



Page 

Fiske v. People 274, 291, 661, 891 

Fitchburg R. R. Co. v. Grand Junc- 
tion R. R. Co. 836, 842 
Fitts v. McGhee 24 
Fitzgerald v. Robinson 661 
v. St. Paul, &c. Ry. Co. 841 
Fitzgerald & M. C. Co. v. Fitzgerald 582 
Fitzpatrick v. United States 449 
Flagg v. Baldwin 62, 178 
v. School Dist. No. 70 322 
v. Worcester 301 
Flaherty, He 289 
v. McCormick 690 
Flanagan v. Philadelphia 867 
v. Plainfield 709 
Flatbush, In re 209, 720 
Fleetwood v. Reed 368, 707 
Fleischner v. Chad wick 216, 217 
Fleishman v. Walker 577 
Fleming, Ex parte 161 
Fletcher v. Auburn & Syracuse R. 

R. Co. 814 

v. Baxter 192 

v. Ferrel 43 

v. Fletcher 829 

v. Lord Somers 84 

v. Oliver 98, 204, 711 

v. Peck 128, 237, 253, 370, 374, 

385, 813 

v. State 449 

v. Tuttle 74 

v. Wall 911 

Flint v. Pike 637, 638, 640 

Flint, &c. Plank Road Co. v. Wood- 
hull 138, 149, 259 
Flint, &c. R. R. Co. v. Dewey 262 
Flint River Steamboat Co. v. Foster 236, 

253, 591 

Flood v. State 279 

Florence, Ex parte 89 

Florentine v. Barton 144, 146 

Florer v. Sheridan 718 

Florida C. Ry. Co. v. Reynolds 708 

Florsheim, &c. Co. v. Lester 180 

Flournoy v. Jeffersonville 689 

Flower v. Flower 679, 584 

Floyd v. Mintsey 82 

Flukes, Re 573 

Flynn v. Flynn 828 

Fobes v. Rome W. & O. Ry. Co. 799, 801, 

802 

Fogg v. Holcomb 640 

Foley v. People 438 

v. State 209, 212, 213 

Folkenson v. Easton 97 

Folsom v. New Orleans 346 

v. Township Ninety-six 31, 696 

Foltz v. Kerlin 895 

v. State 859 

Fond du Lac Water Co. v. Fond 

du Lac 720 

Fong Yue Ting v. United States 14, 456 

Foote v. Fire Department 881 

v. State 473 

Forbes v. Halsey 626 

v. Johnson 619, 630 



Page 

Ford v. Chicago & N. W. R. R. Co. 777, 

778, 791 

r. County Commissioners 807 

. Delta Pine Land Co. 36, 740 

Fordyce v. Godman 193, 194 

Foreman v. Hardwick 924 

v. Marianna 594 

Forepaugh v. Del. L. & W. R. R. 

Co. 178 

v. Delaware L. & W. Ry. Co. 48 
Forster v. Forster 137, 631 

Forsyth v. Hammond 722 

Forsyth Boulevard v. Forsyth 826 

Fort Dodge v. District Township 927 
Fort Leaven worth R. R. Co. v. Lowe 177 
Fort Scott v. Pelton 694 

Fort Wayne v. Coombs 304 

Fort Worth v. Crawford 302 

Fort Worth & N. O. Ry. Co. v. 

Garoin 828 

Fort Worth & R. G. Ry. Co. v. 

Jennings 803 

Forward v. Hampshire, &c. Canal Co. 758 

Fosdick v. Perrysburg 217 

Foss, Re 41 

v. Foss 679 

v. Hildreth 656 

Foster v. Byrne 408 

v. Essex Bank 263, 416, 516, 539 

v. Kansas 848, 849 

v. Kenosha 745 

v. Morse 691 

v. Neilson 25 

v. Scarff 909, 926 

v. Scripps 629 

v. St. Louis 302 

Foule v. Mann 507, 612 

Fourteen Diamond Rings v. United 

States 12 

Fowler, Matter of 778 

v. Beebe 898, 928 

v. Chichester 644 

v. Danvers 330 

v. Halbert 653 

17. Pierce 219 

v. State 930, 934 

Fowles v. Bowen 610 

Fox, Ex parte 424 

v. Cottage, &c. Ass. 688 

v. McDonald 159 

i7. Mohawk & H. R. H. Society 183 

v. State of Ohio 46, 281 

v. W. P. Railroad Co. 813 

v. Wood 192 

Foxcroft t7. Mallett 33 

Foye v. Patch 83 

Frain v. State 445 

Francis v. Railroad Co. 707, 743 

17. Wood 630 

Francois, Ex parte 557 

Frank, Ex parte 289, 709 

Frankfort v. Aughe 280, 851 

v. Winterport 198, 310 

Frankfort, &c. R. Co. v. Philadelphia 285 

Frankland v. Cassaday 81 

Franklin c. Browne ' 606 



TABLE OF CASES. 



li 



Franklin v. State 480 

Franklin Bridge Co. v. Wood 237, 253 

Franklin Co. v. Railroad 706 
Franklin Co. Gram. Sch. v. Bailey 392 

Franz v. Railroad Co. 797 

Frary v. Frary 579 

Frasher v State 657 

Frazee, Matter of 289 

n. Beattie 690 

Frazer v. Lewiston 355 

Free v. Buckingham 677 

Freeborn v. Pettibone 413 

Freedman v. Steel 684, 685 

Free Fishers' Co. v. Gann 752 

Freeholders v. Sussex 303 

Freeholders, &c. v. Barber 283 
Freel v. School City of Crawfords- 



ville 
Freeland v. Hastings 



305 

243, 311, 333, 698, 
704 

20,411 
683 
223 

25 
607 
301 
306 
396 
231 

86 
803 
400 



v. Williams 
Freeman v. Alderson 
w. Gaither 
v. Howe 
. Price 
Freeport v. Isbell 

v* Marks- 

Freeport W. Co. v. Freeport 
Frees v. Ford 
Freeze y. Tripp 

Freiday v. Sioux City R. T. Co. 
Freleigh v. State 

Frellsen v. Mahan 737 
Fremont, E. & M. V. Ry. Co. v. 

Bates 826 

French v. Barber Paving Co. 714, 731 

v. Boston 302 

v. Braintree Manuf. Co. 771 

v. Camp 728 

v. Commonwealth 388 

v. Deane 375 

v. Edwards 113 

v. Kirkland 735 

v. Nolan 932 

t7. State (141 Ind.) 104 

v. State (Tex. Cr. App.) 689, 853, 858 

v. State (85 Wis.) 451 

Fretwell v. Troy 285 

Friedman v. Mathes 121 

Friend v. Hamill 927 

Fries c. New York & H. R. Ry. Co. 800 

Frieszleben v. Shallcross 902 

Frink v. Darst 84 

Frisbie v. Fowler 607 

Frith v. Dubuque 301 

Fritts v. Palmer 181 

Frolickstein v. Mobile 676, 859 

Frommer v. Richmond 285 

Frorer v. People 672, 877 

Frost 17. Belmont 196, 266, 309 

v. Chicago 289 

v. Thomas 162 

Fry v. Bennett 645 

. Booth 114,929,930 

t7. State 610,840,891 

Fry's Election Case 903, 904, 905 



Page 

Fryer v. Kinnersley 611 

Fuller i7. Chicago, &c. R. R. Co. 875 

v. Dame 197, 198 

v. Edings 781 

v. Gould 711 

v. Groton 307, 308 

v. Hampton 353 

v. Morrison Co. 336 

v. People 206 

t7. State 425 

Fullerton v. Bank of United States 33 

Fulmer v. Commonwealth 93 

Fulton v. Davenport 721 

w. McAffee 31 

Fuqua v. Pabst Brewing Co. 848, 876 

Furgeson v. Jones 685 

Furman v. New York 89 

v. Nichol 403 

Furman Street, Matter of 717, 783, 822 

Furnell v. St. Paul 363 

Furniss v. Hudson River R. R. Co. 819 



G. 

Gabbert v. Railroad Co. 

Gabel v. Houston 

Gableman v. Peoria, D. & E. R. Co. 

Gaff v. Greer 

Gage t7. Bain 

v. Caraher 526, 

v. Censors 

v. Graham 339, 

v. Shelton 
Gagnet v. Reese 
Gaines v. Buford 

v. Coates 562, 565, 

v. Gaines 
Gainsville, H. & W. Ry. Co. v. Hall 



Gale, Matter of 

r. Kalamazoo 562, 854, 

v. Mead 

17. South Berwick 
Galen v. Clyde & Rose Plank Road 

Co. 

Galena & Chicago Union R. R. Co. 
v. Appleby 836, 

v. Dill 

v. Loomis 836, 

Galesburg v. Hawkinson 144, 

Gall v. Cincinnati 

Gallatin v. Bradford 281, 

Galveston v. Posnainsky 
Galveston, H. & S. A. Ry. Co. v. State 

v. Texas 
Galveston, & W. Ry. Co. v. Galveston 

Gatnmel v. Potter 
Gannett v. Leonard 
Gannon, In re (16 R. I.) 

Re (16 R. I.) 

v. People 

Gano v. Minneapolis & St. L. Ry. Co. 
Gantly's Lessee v. Ewing 
Garbett, Ex parte 



208 
285 
28 
661 
751 
749 
890 
341 
605 
496 
550 
888 
156 
811, 
826 
481 
887 
114 
310 

355 

843 
843 
843 
267 
888 
291 
356 
384 
384 
266, 
299 
773 
146 
830 
672 
469 
656 
412 
481 



lii 



TABLE OF CASES. 



Page 

Garcia ?. Lee 26 

v. Territory 473 

Gardiner v. Johnston 296 

Gardner v. Burke 932 

v. Collins 81 

v. Hope Ins. Co. 394 

v. Michigan C. Ry. Co. 32 

. Newburg 757, 769, 807, 808, 814 

v. The Collector 194 

v. Ward 927 

Gargan v. Louisville, N. A. & C. Ky. 

Co. 298 

Garland, Ex parte 370, 371, 374, 376 

v. Brown's Adm'r 406 

Garner v. Gordon 497 

Garnett v. Jacksonville 789 

Garr v. Selden 629, 634 

Garrabad, Re 290 

Garrett v. Beaumont 529 

v. Cordell 411 

v. Doe 529 

v. Janes 293 

v. Lake Roland Elevated R. Co. 784 

v: State 854 

v. St. Louis 728 

Garrigas v. Board of Com'rs 202, 209 

Garrigus v. State 453 

Garrison v. Hollins 591 

v. New York 358 

v. Tillinghast 687 

Gartin v. Penick 661 

Garvey, In re 440 

v. People 381 

Garvey's Case 468 

Garvin v. State 207 

Gas Co. v. Parkersburg 299 

v. San Francisco 860 

v. Wheeling 92 

Gascoigne v. Ambler 607 

Gaskill v. Dudley 354 

Gass v. Wilhite 660 

Gassett v. Gilbert 610 

Gastineau v. Cora. 289 

Gaston v. Mace 862 

v. Merriam 217 

Gatch v. Des Moines 722 

Gates v. Neal 927 

Gathercole v. Miall 625, 644 

Gatlin v. Tarboro 707 

Gatton v. Chicago, R. I. & P. Ry. Co. 48 

Gatzow v. Buening 324 

Gaulden v. State 482 

Geary v. Simmons 80 

Gebhard v. Railroad Co. 517 

Gebhardt v. Reeves 796, 809 

Geildes v. Cunningham 750 

Gee v. Williamson 80 

Geebrick v. State 163, 171, 173 

Geer v. Connecticut 852 

Gehling v. School District 262 

Gelpcke v. Dubuque 35, 167, 321, 324 

Genet v. Brooklyn 825 

Genther v. Fuller 751 

Gentile v. State 183, 868 

Gentry v. Griffith 192 

George v. George 859 



Page 

George v. Gillespie 80 

v. Oxford 223 

Georgetown, &c. R. R. Co. v. Eagles 786 

Georgia u. Stanton 3 

Georgia, &c. R. R. Co. v. Harris 575, 577 

Georgia Packing Co. v. Macon 690 

Georgia Pen. Cos. v. Nelms 386 

Georgia R. R., &c. v. Smith 165, 874 

Gerard v. People 468 

Gerhard v. Seekonk, &c. Co. 788 

German, &c. Cong. v. Pressler 660 

German Reformed Church v. Seibert 661 

German Savings Bank v. Franklin Co. 34 

Germania Ins. Co. v. Wisconsin 30 

Germania Trust Co. v. San Francisco 738 

Gerrish v. Brown 861 

Gerry v. Stoneham 529 

Gertum v. Board 389 

Gettys v. Gettys 579 

Gianfortone v. New Orleans 347 

Gibb v. Washington 898 

Gibbons v. Dist. Columbia 739 

v. Mobile, &c. R. R. Co. 167, 542 

v. Ogden 10, 11, 92, 864 

v. United States 24 

Gibbs v. Gale 525 

Giboney v. Cape Girardeau 721 

Gibson, Ex parte 496 

v. Armstrong 661 

v. Choteau 30, 524 

v. Emerson 129 

i'. Harrison 882 

v. Hibbard 639 

r. Huntington 357 

v. Lyon 36 

v. Mason 506, 892 

v. Mississippi 19, 382 

v. School District 262 

v. United States 769 

v. Wood 904 

Gidding v. Blacker 74, 931 

Giesy v. Cincinnati, W. & Z. R. R. Co. 780, 

809, 825 

Gifford v. People 449 

v. Railroad Co. 209 

Gill v. Davis 198 

Gilbert v. Ackerman 624 

v. People 631, 633, 647 

Gildersleeve v. People 681 

Gilfillan v. Union Canal Co. 407 

Gilkeson v. Frederick Justices 265 

Gilkey v. Cook 97 

Gill v. Parker 849 

Gillespie v. Lincoln 305 

v. Palmer 893, 927, 928, 931 

v. People 573, 887 

v. State 209, 213 

Gillett v. McCarthy 210 

Gillette v. Hartford 726 

Gilliland v. Phillips 637 

v. Sellers's Adm'r 675 

Gillinwater v. Mississippi & Atlantic 

R. R. Co. 75, 760, 762 

Gillison v. Charleston 363 

Gilluly v. Madison 304 

Gilman v. Cutts 512 



TABLE OF CASES. 



liii 



Oilman v. Lockwood 

v. Lowell 

v. Philadelphia 11, 688, 856, 869, 

p. Sheboygan 

v. Tucker 

v. Williams 
Gilmer v. Lime Point 755, 763, 777, 

Gilmore v. Heutig 
Gilson v. Dayton 

v. Rush 
Ginn v. Rogers 

Giozza v. Tierman 22, 

Girard v. Philadelphia 
Girard Will Case 

Girdner . Stephens 62, 

Gladden v. State 
Gladson v. Minnesota 
Glasgow v. City of St. Louis 
Gleason v. Dodd 41, 42, 

v. Gleason 

v. Keteltas 
Glenn v. Garth 
Glide, The 
Glidewell v. Martin 
Gloucester Ferry Co. v. Pennsylvania 

856, 

Gloucester Ins. Co. v. Younger 
Glover v. Powell 788, 

v. Taylor 

Godeharles v. Wigeman 234, 559, 
Goddard, Petitioner 279, 281, 286, 

v. Jacksonville 845, 

Goddin v. Crump 167, 

Godshalk v. Metzgar 
Goenen v. Schrceder 
Goetcheus v. Mathewson 581, 927, 
Goetz v. United States 
Goff v. Frederick 
Goggans v. Turnispeed 
Gohen v. Texas Pacific R. R. Co. 
Gold v. Fite 

Goldey v. Morning News 
Goldthwaite v. Montgomery 
Gold Water & Washing Co. v. Keyes 
Gonell v. Bier 
Gooch, Re 
Good v. Zercher 
Goodell, Matter of 

v. Jackson 
Goodenouph, In re 
Good hue, Re 

Goodin v. Thoman 99, 

Goodlett v. Kelly 
Goodman v. Munks 

v. State 

Goodrel v. Kreichbaum 
Goodrich a. Detroit 

v. Winchester, &c. Co. 
Goodsell v. Boynton 
Goodtitle v. Kibbee 

v. Otway 

Goodwin v. Thompson 
Goodwin, &c. Co.'s Appeal 
Goodwine v. Evans 



Page 
417 
605 
864 
396 
672 
252 
815, 
817 
722 
323 
711 
676 
885 
267 
670 
522 
452 
852 
781 
583 
579 
691 

39 

26 
195 
689, 
867 

35 
863 
924 
877 
860, 
861 
883 
257 
638 
413 
928 

12 
267 
404 
217 

91 
180 
265 

29 
896 
848 
638 
655 

84 
497 
237 
389 
525 
622 
450 

23 
274 
717 
223 
755 

84 

62 
478 
827 



Page 

Gordon v. Appeal Tax Court 176, 395 

v. Building Association 560. 564 

p. Caldcleugh . 31 

v. Cornes 337, 338, 703 

v. Farrar 927 

v. Ingram 132 

v. M cores 159 

v. People 215 

v. Preston 276 

Gore v. State 450, 453 

Gorham v. Campbell 929 

v. Cooperstown 363 

v. Luckett 453 

v. Springfield 166 

Gorman v. Pacific R. R. Co. 394, 841 

Gormley w. Taylor 253 

Goshen v. Kern 285, 710 

v. Richmond 648 

v. Stonington 235, 633, 536 

Goshorn v. Purcell 630. 538 

Goslin t;. Cannon 612, 630 

v. Veley 281, 932 

Gosnell v. State 890 

Gosselink v. Campbell 286, 860 

Cosset v. Howard 191 

Gossigi v. New Orleans 285, 888 

Goszler v. Georgetown 295, 783 

Gott v. Pulsifer 648 

Gottbehuet v. Hubachek 606, 628 

Gottschalk v. Chicago, &c. R. R. Co. 811 

Gougar v. Timberlake 901 

Gough v. Dorsey 129, 589 

v. Pratt 136 

Gould, Ex parte 443 

v. Hudson River R. R. Co. 781, 786 

v. Sterling 274, 320, 323, 542 

v. Sullivan 750 

v. Topeka 302 

Goulding v. Clark 275 

Govan v. Jackson 934 

Gove v. Blethen 628 

v. Epping 327, 704 

Governor . Porter 77, 132, 137 

Grace v. McElroy 86 

v. Teague ' 898 

Graffty v. Rushville 693 

Graham, Ex parte 629 

v. Chicago 732 

v. Com'rs Chautauqua Co. 707 

v. Greenville 166 

t;. Weeks 32 

Grammar School v. Burt 392 

Granby v. Thurston 266 

Grand Gulf R. R. Co. v. Buck 396 

Grand Island & N. W. Ry. Co. v. 

Baker 321 
Grand Lodge of Louisiana v. New 

Orleans 396 

Grand Rapids v. Brandy 288 

v. Hughes 271 

v. Newton 291 

v. Perkins 818 

v. Powers 574 
Grand Rapids, &c. R. R. Co. v. Heisel 786, 

799 

v. Weiden 761 



liv 



TABLE OF CASES. 



Page 

Grand Rapids Booming Co. v. Jarvis 787 
Grand Trunk Ry. Co. v. Ives 134, 560 
Granger v. Pulaski Co. 348, 355 

Grannahan v. Hannibal, &c. R. R. 

Co. 836, 844 

Grant v. Brooklyn 362 

v. Buckner 26 

v. Courier 241 

v. Erie 301 

v. Leach 566 

v. Spencer 114 

v. State 461 

Grattan v. Mattison 689 

Graves v. Blanchet 607 

v. Nor. Pac. R. R. Co. 590 

v. Otis 296, 783 

v. Saline 322 

Gray v. Connecticut 568, 845 

v. Danbury 363 

v. First Division, &c. 791 

v. Griffin 305 

v. Hook 924 

v. Knoxville 304 

v. Navigation Co. 394 

v. Pentland 618, 619 

v. State 564 

Gray's Lessee v. Askew 86 

Great Falls Manufacturing Co. v. 

Fernald 773 

v. Garland 814 

Great Western R. R. Co. v. Decatur 840 
Great Western Telegraph Co. v. 

Purdy 40 

Greeley v. Jacksonville 217 

Greeley S. L. Ry. Co. v. Yount 827 

Green, Re 28 

v. Aker 121 

. Biddle 387 

v. City 803 

v. Chapman 645 

v. Collins 575 

z;. Creighton 576 

v. Custard 583 

v. Holway 685 

v. Hotaling 695 

v. Mayor, &c. 209 

v. Neal's Lessee 33, 34 

v. Portland 799 

v. Reading 296, 783 

v. Sarmiento 42 

v. Savannah 854 

v. Shumway 902 

v. State 24, 557, 782, 869 

v. Swift 782, 869 

v. Telfair 656 

v. Van Buskirk 43 

v. Weller 92, 93, 194 

Greencastte, &c. Co. v. State 87, 216 

Greencastle Township v. Black 91, 92, 

93, 107, 115 

Greene, Re 336 

v. Briggs 431, 502, 591 

Greenfield i;. Dorris 413 

Greenlaw v. Greenlaw 578 

Greenough v. Greenough 129, 132, 136, 

150, 540 



Page 

Greensboro' v. Ehrenreich 287 

v. Mullins 280 

Greenstreet v. Thornton 681 

Greenville v. Kemmis 280 
Greenville & Columbia R. R. Co. v. 

Partlow 823, 824, 825 

Greenwood v. Cobbey 620 

v. Curtis 178 

v. Freight Co. 394 

i>. Louisville 301 

v. State 280 

Gregory, Exparte 283, 709 

o. Bridgeport 308 

v. Denver Bank 407 

v. Gregory 679 

v. State 133 

Grenada Co. Supervisors v. Brogden 256 

Grey v. Newark Plank R. Co. 183 

ex rel Simmons v. Paterson 782 

Gridley v. Bloomington 286, 861 

Grier v. Shackleford 937 

Griffin v. Cunningham 560 

v. Goldsboro 873 

v. Martin 788 

v. McKenzie 622 

v. Mixon 518 

. New York 300 

v. Ranney 685 

v. Wilcox 410, 517 

v. Williamstown 363 

Griffin's Case 18 

Griffin's Executor v. Cunningham 138, 

153, 546 

Griffing v. Gibb 34 
Griffiths, In re 130 
Griggs v. Foote 296 
Grills v. Jonesboro' 285 
Grim v. Weissenburg School Dis- 
trict 535, 701 
Grimes v. Coyle 612, 619, 630 
v. Doe 537 
v. Eddy 854, 881 
Grimmett v. State 441 
Grissell v. Housatonic Ry. Co. 841 
Griswold v. Bragg 553 
v. School District 712 
Grob t>. Cusliman 195 
Groesbeck v. Seeley 623, 527 
Groesch v. State ' 173 
Groffs, In re 247 
Grogan v. San Francisco 346, 386 
v. State 468 
Groorne v. Gwinn 162 
Gross v. Rice 474 
v. U. S. Mortgage Co. 30, 537 
Grossman v. Oakland 290 
Grosvenor v. Chesley 406 
v. United Society 661 
Grove v. Brandenburg 629 
r. Todd 638 
Grover & B. S. M. Co. v. Radcliffe 42 
v. Huckins 620 
v. Trustees Ocean Grove 213 
Grubb v. Bullock 160 
Grubbs v. State 212 
Grube v. St. Paul 305 



TABLE OF CASES. 



Iv 



Page 

Grumbine v. Washington 305, 362 

Grundy v. Commonwealth 515 

Grunewalds v. Cedar Rapids 272 
Guaranty T. & S. D. Co. v. Green 

C. S. & M. Ry. Co. 42, 44 

Guard r. Rowan 629 

Gubasko v. New York 363 

Guenther v. People 470 

Guerin v. Moore 614 

Guerrero, In re 283, 294, 694, 709 

Guetig v. State 437 

Guild v. Kidd 553 

v. Rogers 406, 409 

Guile v. Brown 590 

Guilford v. Cornell 208 

v. Supervisors of Chenango 309, 332, 

335, 340, 543, 761 

Guillotte v. New Orleans 286, 888 

Guiterrez, Ex parte 383 

Gulf, C. & S. F. Ry. Co. v. Ellis 16, 671 

v. Fuller 811 

v. Helfley & Lewis 872 

v. Rambolt 92 

v. State 875 

Gulick v. New 932 

v. Ward 197 

Guiline v. Lowell 808 

Gumm v. Hubbard 916 

Gundling v. Chicago 15 

Gunn, Re 189 

v. Barry 62, 63, 407, 408 

. White S. M. Co. 180 

Gunnarssohn v. Sterling 174 

Gunnison Co. Com'rs v. Rollins & 

Sons 322 

Gunter v. Dale Co. 207 

Gurnee v. Chicago 719 

v. Speer 403, 407 

Gurney v. Minneapolis Union Elev. 

Co. 804 

Gustafson v. State 66 

Gut v. Minnesota 375 

v. State 382, 459 

Guthrie v. Oklahoma 336 

Guthrie Nat'l Bk. v. Guthrie 336 

Gutman v. Virginia Iron Co. 237 

Guy v. Baltimore 694 



H. 

Haas v. Chicago, &c. R. R. Co. 840, 843 

Habersham v. State 464 

Hackett, In re 606, 590, 749 

v. Wilson 667 

Hackettstown r. Swackhamer 271 

Hackney v. Vawter 661 

v. Welsh 41 

Hadden v. Chora 661 

v. The Collector 202 

Hadduck's Case 276 

Hadley v. Mayor, &c. 937, 939 

Hadsell v. Hancock 308 

Hafford . New Bedford 301 

Hagan v. Hendry 658 

Hagany v. Cohnen 690 



Page 

[la gar v. Reclamation Dist. 722 

v. Supervisors of Yolo 735 

Hagerstown v. Dechert 247, 250 

v. Schuer 267 

v. Whitmer 287, 297 

Haggard v. Hawkins 208 

Hagge v. State 935 
Haggerty v. St. Louis I. M. & S. Co. 879 

Hagood v. Southern 24 

Hahn v. United States 106 

Haigh v. Bell 860 

Haight v. Grist 685 

v. Lucia 454 

Haines v. Hall 862 

v. Levin 591 

v. School District 275 

Haines's Appeal 591 

Hair v. State 451 
Haislip /;. Wilmington, &c. R. R. Co. 824 

Hakewell, Matter of 497 

v. Ingram 656 
Halbert v. San Saba Springs, L. & 

L. S. Ass'n 187 

v. Sparks 262 
Hale v. Everett 67, 93, 660, 664, 670 

v. Kenosha 718, 741 

v. Lawrence 878 

v. State 130 

v. Wilkinson 685 

Haley v. Clarke 160 

v. Philadelphia 136, 530 

v. Taylor 486 

Hall, In re 218 

v. Armstrong 456 

v. Bray 182 

v. Bunte 207 
v. De Cuir 668, 840, 881 

v. Gavitt 924 

v. Marks 589 

v. Marshall 167, 925 

v. Steele 195, 199 

v. Thayer 593, 594 

v. Washington Co. 474 

v. Williams 41, 42, 583 

v. Wisconsin 386, 389 
Hallinger v. Davis 464, 456, 505 

Hallock v. Franklin Co. 818 

v. Miller 607 

Halstead v. Buster 32 

v. Nelson 620 
v. New York 270, 309, 311, 323 

Ham v. McClaws 234 

v. Salem 769 

v. Smith 924 

. State 40 

v. Wisconsin, &c. Ry. Co. 823 

Hamblin v. Western Land Co. 30 

Hamersley v. New York 814 

Hamilton, Ex parte 496 

v. Brown 22 

v. Carthage 363 

v. Eno 628 

v. Hirsch 515 

v. Kneeland 62 

v. People 464 

v. State 177, 218 



Ivi 



TABLE OF CASES. 



Page 

Hamilton u. St. Louis County Court 69, 

101 

v. Vicksburg, &c. R. R. Co. 55, 784, 
864, 866 

v. Wilson 708 

Hamilton Co. v. Massachusetts 30 

v. Mighels 348 

Hamilton Co. Com'rs v. Rasche 530, 555 

Hamilton Gas Light & Coke Co. v. 

Hamilton 299, 383, 394 

Hamlet v. Taylor 223 

Hamlin v. Mack 606 

v. Meadville 272, 319 

Hammett v. Philadelphia 400, 704, 717, 

719, 730 

Hammond v. Anderson 84 

v. Haines 173 

v. People 496 

v. Wilcher 891 

Hampshire v. Franklin 268 

Hampton v. Coffin 818 

v. McConnel 43 

u. Wilson 644 

Hamrick v. Rouse 176 

Hancock, Matter of 592 

v. Louisville & N. Ry. Co. 32 

v. State 441 

v. Yaden 572, 877 

Hancock Nat'l Bank v. Farnum 43 

Hand v. Ballou 526 

Hand Gold Mining Co. v. Packer 771 

Handle . Chapin 852 

Handy v. Chatfield 410, 415 

v. State 464 

v. St. Paul, &c. Pub. Co. 860 

Haney v. Marshall 37 

Hanford v. Davis 36 

Hanger v. Des Moines 310 

Hang Kie, In re 286 

Hankins v. Lawrence 772 

v. People 280 

Hanley v. Donoghue 42 

Hanlin v. Chicago, &c. Ry. Co. 791 

Hanlon v. Doherty 478 

Hanna v. Young 9S 

Hannel v. Smith 87 

Hannibal v. Richards 884 

Hannon v. Grizzard 894, 90.- 

v. St. Louis Co. Court 354 

Hanoff v. State 449 

Hanover v. Turner 578, 58C 

Hans v. Louisiana 24, 417 

Hanscom v. Boston 36c 

Hansen v. Vernon 691 

Hapgood v. Doherty 591 

v. Whitman 529 

Happel v. Brethauer 19( 

Happy v. Morton 66( 

v. Mosher 58* 

Happy Home Club v. Alpena Co. 

Harbaugh v. Cicott 905, 921, 932 

Harbeck v. New York 257 

Harbison v. Knoxville Iron Co. 509 

Harbor Com'rs v. Pashley 69 

Hard v. Burton 68? 

v. Nearing 504, 606 



lardeman v. Downer 
larden v. Cumstock 
iardenburg v. Lock wood 
3ardin v. Baptist Ch. 
iarding, Ex parte 



Page 

634 
788 
660 
496 



v. Alden 679, 580, 584, 585 

v. Funk 772, 823 

f. Goodlet 772, 775 

v. People 837 

v. Rockford, &c.R. R. Co. 819 

v. Stamford Water Co. 788 

rlardwick v. Pawlet 485 

Hardy v. Atchison, &c. R. R. Co. 875 
v. Brooklyn 304 

flare i: Hare 579 

v. Kennedy 745 

v. Mellor 619 

Harkrader v. Wadley 25, 26 

Harley v. Montana O. P. Co. 582 

Harlan v. People 46 

Harman v. Harwood 159 

v. Lynchburg 305 

Harmison v. Ballot Com'rs of Jeff. Co. 127 
Harmon v. Auditor 83 

v. Chicago 688, 690, 856, 859, 884 
v. Dreher 661 

v. Omaha 296, 812 

v. Wallace 412 

Harmony v. Mitchell 878 

Harp v. Osgood 487 

Harpending v. Haight 162, 220 

r. Reformed Church 33 

Harper ?. Commissioners 506 

i?. Richardson 814, 815 

v. Rowe 546 

Harper County Comr's v. Rose 322 

Harrigan v. Lumber Co. 868 

Harriman v. Baptist Church 661 

v. Boston 363 

Harrington v. County Com'rs 818 

v. Miles 605 

v. Providence 883 

v. State 466 

Harris v. Austell 409 

v. Colquit 

v. Dennie 30 

v. Harris 80 

17. Huntington 619 

v. Inhabitants of Marblehead 553 
v. McClanahan 686 

v. Morris 484 

v. People 209, 458 

v. Roof 197 

v. Rutledge 539 

v. Schuylkill R. E. S. Ry. Co. 826, 

827 

17. State 212 

17. Terry 606 

Harrisburg, C. & C. T. R. Co. v. Har- 

risburg & M. E. Ry. Co. 814 

Harris Co. v. Boyd 695 

Harrison v. Baltimore 863 

v. Bridgeton 267, 268, 345 

r. Bush 610, 612, 647, 648 

t7. Harrison 679, 684 

t7. Leach 95 



TABLE OF CASES. 



Ivii 



Page 

Harrison v. Metz 629 

v. Morton '28 

v. New Orleans, &c. Ry. Co. 798 

v. Sager 86 

v. Stacy 622 

r. State 237 

v. Supervisors 206, 209 

v. Willis 617 

Harrison Justices v. Holland 266 

Harrodsburg v. Renfro 291 

Harrow v. Myers 87 

Hart v. Albany 292, 830, 878 

v. Bostwick 623 

v. Bridgeport 305 

v. Brooklyn 358, 860 

v. Evans 919 

v. Henderson 527 

v. Holden 331 

v. Jewett 81 

v. State 382 

v. Von Gumpach 629 

Harteau v. Harteau 680 

Hartford v. State 606 

Hartford Bridge Co. v. Union Ferry 

Co. 237, 263 

Hartford F. Ins. Co. v. Chicago M. 

& St. P. Ry. Co. 32, 833 

v. Reynolds 478 

Hartland v. Church 719 

Hartman, Ex parte 496 

v. Aveline 39 

v. Greenhow 85, 386, 403 

Hartman Steel Co., Appeal of 703 

Hartranft's Appeal 162 

Hartt v. Harvey 935 

Hartung v. People 379, 473, 616, 544 

Harvey v. Com'rs Rush Co. 388 

v. Farnie 580 

v. Lackawanna R. R. Co. 781, 785, 

823 

v. Tama Co. 924 

v. Thomas 237, 608, 765 

Harward v. St. Clair, &c. Drainage 

Co. 643 

Harwood v. Astley 624 

v. Bloomington 826 

Hasbrouck v. Milwaukee 313, 337, 338, 

642 

v. Shipman 414 

Haskel v. Burlington 656 

Haskell, Re 288 

v. New Bedford 232, 251, 780 

Hastings v. Lane 629 

v. Lusk 633 

Hastings & G. I. R. R. Co. v. Ingalls 803 

Haswell's Case 613 

Hatch v. Lane 611, 612 

v. Stoneman 162 

v. Vermont Central R. R. Co. 

783, 807, 826 

Hatcher v. State 655 

v. Toledo, &c. R. R. Co. 629 

Hatcheson w. Tilder 932 

Hatchett v. Mount Pleasant Ch. 661 

Hatfleld v. Commonwealth 177 

Hathaway v. New Baltimore 209 



Hatheway v. Sackett 
Hatlion v. Lyon 
Hathorne v. Panama 
Hatzfield v. Gulden 
Hauenstein v. Lynham 



Page 

263, 267 

613 

456 

198 

25 



Haugen v. Albina Light & W. Co. 877 
Hausenfluck v. Commonwealth 436 

Harvard v. Day 748 

Haverhill Bridge Props, v. County 

Commissioners 814 

Haverly I. M. Co. v. Howcutt 689 

Hawbecker v. Hawbecker 89 

Hawes v. Chicago 290 

v. Miller 915, 925 

Hawk v. Marion Co. 310 

Hawker v. New York 890 

Hawkins v. Barney's Lessee 387 

v. Carrol 91 

v. Commonwealth 266 

v. Governor 132, 162, 228 

v. Jones 80 

v. Lumsden 644 

v. Mangrum 706 

v. Ragsdale 684 

Hawthorn v. People 886 

Hawthorne v. Calef 392, 407, 415 

Hay v. Cohoes Company 773, 786 

Hay den v. Foster 749 

v. Goodnow 265 

r. Noyes 281, 287, 291 

Hayes v. Appleton 285 

Ex parte 890 

r. Douglas County 731 

v. Holly Springs 322 

v. Missouri 19, 459 

v. Pratt 27 

v. Press Co. 638 

v. Reese 80 

Haynes v. Burlington 757 

v. Thomas 785 

Hays v. Brierly 666 

v. Risher 778 

Hay wood v. Savannah 278 

Hazen v. Essex Company 772 

v. Lerche 262 

Head v. Amoskeag Co. 773 

v. Daniels 688 

v. Providence, &c. R. R. Co. 323 

Head Money Cases 25, 686, 832, 858 

Health Dept. v. Rector of Trin. 

Church 671, 880 

Heard v. Brooklyn 796 

v. Heard 223 

Hearn v. Brogan 217 

Heath, Ex pnrte 114, 926, 929, 933, 935 
Heather Children, Matter of 497 

Hechinger v. Maysville 286 

Hector v. State 445, 469 

Hedderich v. State 845 

Hedgecock v. Davis 104 

Hedges v. Dixon County 320, 822 

v. Madison Co. 865 

Hedley v. Com'rs of Franklin Co. 263 
Hegarty's Appeal 144, 149 

Hegeman v. Western R. R. Co. 835, 838 
Heilbron, Ex parte 287 



Iviii 



TABLE OF CASES. 



Page 

Heilbron, Estate of 409 

Hein v. Davidson 607 

Heinlein v. Martin 81 

Heiss v. Milwaukee, &c. Ry. Co. 791 

Hekking v. Pfaff 40 

Heldt v. State 446, 449 

Helena v. Dwyer 289 

v. Gray 284 

v. Thompson 362 

Helena Cons. Water Co. v. Steele 335 

Heller v. Atchison, &c. R. R. Co. 648 

v. Sedalia 301 

Helverstine v. Yantes 691 

I leman v. Allen 731 

Hendershot v. State 818 

Hendershott v. Ottumwa 296 

Henderson v. Griffin 31 

v. Hey ward 289 

v. Lambert 726 

v. McClain 784 

v. Minneapolis 783, 786 

v. New York 688 

. Oliver 751 

Henderson Petitioner in State v. 

Evans 474 

Henderson's Distilled Spirits 429, 748 

Henderson's Tobacco 217 

Henderson Bridge Co. v. Henderson 691 

v. Kentucky 692 

Hendrick's Case 46 

Hendrickson v. Decow 661 

v. Hendrickson 223, 224, 258 

Henisler v Freedman 433 

Henke v. McCord 259 

Henkel v. Cincinnati 30 

v. Detroit 304 

Henley v. Lyme Regis 356, 361 

Henneberger, Re 183 

Hennersdorf v. State 859 

Hennepin Co. v. Bartleson 860 

Hennessy v. St. Paul 883 

Hennington v. Georgia 852, 859 

Henry v. Chester 743 

v. Deitrich 661 

v. Dubuque & Pacific R. R. Co. 

808, 817, 822 

v. Henry 209, 409 

v. Tilson 101 

Henshaw v. Foster 123, 911 

Hensley v. Force 42 

Hensley Township v. People 704 

Hensoldt v. Petersburg 194 

Henson v. Moore 614 

Kenwood v. Harrison 628, 649 

Hepburn v. Curts 615, 634 

Hepburn's Case 764 

Herber v. State 378 

Herdie v. Roessler 13 

Herndon v. Imp. F. Ins. Co. 131 

Herrick v. Randolph 396, 396, 679 

Herrington v. Lansingburgh 362 

Herrmann v. State 288 

Hersey v. Supervisors of Milwaukee 

743, 749 

Hershfield v. State 466 

Hershizer v. Florence 614, 616 



Page 

Hess v. Johnson 411 
v. Pegg 86, 182, 266, 267 
v. Werts 636 
v. White 460 
Hessler v. Drainage Com'rs 643 
Heth v. Fond du Lac 304 
Hewison v. New Haven 304, 346, 360 
Hewitt v. Normal School District 262 
v. Prince 478 
Hewitt's Appeal 722 
Heydenfeldt v. Towns 695 
Heyfron, Ex parte 683 
Hey Sing Jeck v. Anderson 431 
Heyward, Matter of 40 
v. Judd 406, 413 
v. New York 232, 251, 754, 801, 809 
Hibbard v. People 431, 850 
v. State 233 
Hibbard S. B. & Co. v. Chicago 299 
Hibernia R. R. Co. v. Camp 776 
Hickerson v. Benson 924 
Hit-key v. Hinsdale 114 
Hickie v. Starke 30 
Hickman's Case 765 
Hickman v. Kansas City 754, 815, 824 
Hickok v. Plattsburg 357 
Hickox v. Tallman 625, 526 
Hicks v. Steigleman 621 
Higert v. Green Castle 363 
Higginbotham v. State 460 
Higgins v. Berg 900 
v. Chicago 818, 819 
v. Farmer Ins. Co. 65, 590 
v. Lime 686 
High v. Coyne 708 
v. Shoemaker 606 
High's Case 908 
Highland Ave. & B. R. Co. v. Mat- 
thews 828 
High School Dist. No. 137 v. Lan- 
caster Co. 707 
Hightower v. Bailey & K. 616 
Hightstown v. Glenn 183 
Highway Com. v. Ely 302 
v. Martin 303, 356 
Hilands v. Commonwealth 469 
Hilbish v. Catherman 333 
Hildreth v. Lowell 770, 861 
v. Mclntyre 898 
Hill, Ex parte 494 
v. Boston 302, 305, 355 
v. Boyland 118 
v. Charlotte 301 
v. Commissioners 209 
v. Higdon 717, 728, 730, 734, 742, 745 
v. Hill 937 
v. Kessler 408 
v. Kricke 522, 623 
v. Miles 619 
v. Morse 80 
v. People 458, 676, 677 
v. Pride 685 
v. Slade 99 
p. Spear 850 
v. State 221, 223 
v. Sunderland 138 



TABLE OF CASES. 



lix 



Page 

Hill v. Wella 594 

Hill's Case 452 

Hillebert v. Porter 414 

Billiard v. Connelly 138 

v. Miller 540 

v. Moore 412 

Hills v. Chicago 102, 121, 236 

Hiimnan v. Warren 64 

Himmelman v. Carpenter 625 

Hinchman t>. Paterson Horse R. R. 

Co. 800, 805, 806, 867 

v. Town 577 

Hinckley v. Somerset 358 

Hind v. Rice 209 

Hinde v. Vattier 33 

Hindman v. Piper 149 

Hines v. Charlotte 301 

v. Leaven worth 717, 730 

v. Lockport 304, 363 

Hingham, &c. Turnpike Co. v. Nor- 
folk Co. 232 
Hing v. Crowley 258 
Hingle v. State 203, 205 
Hinkle, In re 898 
Hinman o. Chicago, &c. R. R. Co. 842 
Hinsou v. Lott 690 
Hinton v. State 435 
Hintrager v. Mahoney 750 
Hintz v. Michigan C. Ry. Co. 454 
Hipp v. Charlevoix Co. Superv. 937 
Him v. State 217, 399, 400 
Hiss o. Bartlett 190 
v. Railway Co. 802 
Hite i7. Hite 569 
Hoag v. Hatch 605 
v. Switzer 785 
Hoagland v. Creed 589 
Hoar v. Wood 632, 633, 647 
v. Silverlocke 637 
Hobart v. Supervisors, &c. 166, 167, 237 
Hobbs & Johnson, Ex rel. 551 
Hoboken v. Phinney 744 
Hocking Valley Coal Co. v. Rosser 556, 

571 

Hodge v. Linn 913, 929 

Hodges v. Bait. Pass. Ry. Co. 794 

v. Buffalo 270, 310 

v. Crowley 318 

Hodgkins v. Rockport 263 

Hodgson v. Milward 618, 519 

v. New Orleans 710 

v. Scarlett 632 

v. Vermont 22, 456, 505 

Hoefling v. San Antonio 718 

Hoffman v. Circuit Judge 483 

v. Hoffman 42, 579, 580 

17. Locke 591 

i7. State 467, 469 

Hoge v. Railway Co. 396 

Hogg, Ex parte 209 

17. Mackay 739 

v. Zanesville Canal Manuf. Co. 64, 

867 

Hoggard v. Monroe 306 

Hoggatt v. Vicksburg, &c. R. R. Co. 804 
Hoglan v. Carpenter 895 



Page 

Hoisington 17. Hough 252 

Hoke v. Henderson 603 

Holbrook v. Finney 613 

v. Murray 42 

Holden v. Hardy (14 Utah) 456,457,605, 

570, 891 

v. James 237, 621, 658, 659 

v. Minn. 376 

Holder v. Aultmann M. & Co. 178 

v. State 463 

Holland v. Com'rs of Silver Bow 

Co. 720 

v. Davis 921 

17. Dickerson 406 

v. Osgood 113 

v. State 133 

Hollenbeck v. Winnebago Co. 305 

Holley v. Burgess 606 

Hollida v. Hunt 12 

Holliday v. Ont. Farmers', &c. Co. 610 

Hollingsworth v. Duane 454 

Hollis v. Meux 630 

Hollister v. Hollister 579, 580 

i7. Union Co. 549 

Holloway v. Sherman 406, 515 

Hoi man v. School Trustees 263 

Holman's Heirs v. Bank of Norfolk 144, 

583, 584 

Holmes, Ex parte 41 

v. Holmes 403, 585 

v. Jennison 30, 41 

Holt i7. Downs 660 

v. State 379, 467 

Holt's Appeal 275 

Holton v. Com'rs Mecklenburg Co. 707 

v. Milwaukee 728, 822, 823 

Holyoke Co. v. Lyman 394, 565 

Home v. Bentinck 630 

Home Building, &c. Co. v. City of 

Roanoke 784 

Home Ins. Co. v. Augusta 283, 404 

17. Swigert 166, 707 

17. Taxing District 216 

Home Ins. & T. Co. v. Tennessee 397 

Home & C. v. Wilkinsburg 718, 741 

Home of the Friendless v. Rouse 395 

Homer v. Commonwealth 217 

Homestead Cases 408 

Hong Wah, In re 286 

Hood t7. Finch 818 

i\ Lynn 310 

f. State 42, 580 

Hook 17. Hackney 606, 628 

Hooker v. Hooker 138 

v. New Haven, &c. Co. 781 , 786, 787, 

815 

Hooper, In re 39 

v. Bradford 709 

17. Bridgewater 769 

v. California 179, 687, 834 

v. Emery 272, 698, 704 

Hoover v. McChesney 609 

17. Mitchell 80 

v. Wood 231 

Hope v. Johnson 615 

v. Mayor, &c. 205, 208 



TABLE OF CASES. 



Hopkins v. Baker Bros. 

v. Duluth 

v. Hopkins 

v. Lewis 

Hopple v. Brown 
Hopps v. People 
Hopson, In re 
Hopt v. Utah 
Horbach v. Miller 



Page 
720 
166 
679 
848 

272, 323, 348 
437 
494 

447, 452, 469 
522 



Horn v. Atlantic, &c. R. R. Co. 841, 842 

v. Chicago, &c. R. R. Co. 843 

Horn Silver Mining Co. v. New York 179, 

180 

Home v. State 410 

Horstman v. Kaufman 442 

Horton v. Baptist Church 661 

v. Watson 895 

Hoskins v. Brantley 895 

Hosmer v. Loveland 620, 630, 686 

Hospes v. O'Brien 854 

Hotchkiss v. Oliphant 642, 644 

Hot Springs R. R. Co. v. Williamson 811 

Hottentot Venus Case 494 

Houdayer's Estate, lie 21, 720 

Houghton v. Huron Copper M. Co. 312 

v. Page 62 

Houghton Co. Sup'rs v. Blacker 931 

Houlton v. Nichol 196 

House, Re 696 

v. White 477 

House Bill, In re 706 

No. 99, Re 73 

No. 1230, Re 886 

No. 1291, Re 010 

Householder v. Kansas City 121 

Houseman v. Kent Circ. Judge 130, 531 

House of Refuge v. Ryan 423 

Houston, Re 689 

v. Moore 13, 46 

v. Stafe 606, 878 

Houston, &c. R. R. Co. v. Odum 194, 791 

Houston & E. T. Ry. Co. v. Adams 826 

Houston & T. C. Ry. Co. v. State 

(90 Tex.) 884 

v. Texas (170 U. S.) 384 

v. Texas (177 U. S.) 35, 386 

v. Texas & P. Ry. Co. 392 

Houston D. Nav. Co. v. Ins. Co. of 

N. A. 848, 852 

Houston E. & W. Ry. Co. v. Camp- 
bell 848 
Hovelman v. Kansas City 387, 391 
Hover v. Barkhoof 259 
Hovey v. Elliot 455, 669 
v. State 105, 158, 221 
Howard, Ex'parte 161 
v. Church 728 
v . De Cordova 40 
v. McDiamid 266, 939 
v. Moot 409 
t>. San Francisco 801 
v. Schneider 212 
v. Shields , 929 
v. Shoemaker 895 
v. Skinner 903 
v. State 99 



Page 

Howard v. Thompson 619 

v. Worcester 802 

v. Zeyer 653 

Howard County, Division of, 201, 210, 267 

v. State 627 

Howe, Re 708 

v. Plainfleld 690 

Howell v. Bristol 725, 729 

v. Buffalo 338 

v. Fry 690 

v. State 209, 555 

Howes v. Crush 610, 548 

Howison v. Weeden 81, 82 

Howland v. Maynard 610 

v. School Dist. 769 

Hoxie v. Wright 42, 683 

Hoyt v. East Saginaw 728, 730 

v. Hudson 363 

v. People 474 

v. Shelden 30 

v. Sprague 144 

Hubbard v. Bell 862 

v. Brainerd 618, 629 

v. Patterson 292 

v. Taunton 310 

Hubbell v. Hubbell 679, 584 

v. Viroqua 301 

Huber v. People 209 

v. Reily 372, 374, 502, 902 

Huckle v. Money 434 

Huddleston Admx. v. Eugene 804 

Hudelson v. State 464 

Hudson v. Geary 285, 675, 859 

v. State 469 

v. Thorne 283, 288 

Hudson Tel. Co. v. Jersey City 295 

Hudspeth v. Davis 414 

Huesing v. Rock Island 271 

Huff v. Bennett 688, 644 

v. Cook 896 

Huffmire v. Brooklyn 784 

Hughes, Matter of 39 

v. Auburn 302 

v. Baltimore 304 

v. Cannon 639 

t;. County of Monroe 305 

v. Hughes 104 

v. People 280 

v. Recorder's Court 285 

Hughey's Lessee v. Horrell 546, 719 

Ruling v. Kaw Valley Ry. Co. 818 

Hull v. Homer 277 

v. Hull 679, 684 

v. Marshall Co. 324 

v. Miller 184 

Hulseman v. Reins 903, 939 

Humboldt v. Long 321 

Humboldt Co. v. Churchill Co. 

Com'rs 206, 258 

Hume v. Commercial Bank 692 

v. New York 358 

Humes v. Mayor, &c. 296 

v. Tabor 430 

Humphrey v. Pegues 395 

Humphries v. Brogden 831 

Hunckel v, Voneiff 629 



TABLE OF CASES. 



Ixi 



Hungerford's Appeal 80 

Hung Hang, Ex parte 495 

Hunsaker v. Wright 176, 742, 743 

Hunscom v. Hunscom 616 

Hunt v. Bennett 620, 623, 624, 656 

v. Boonville 305 

v. Iowa Cent. Ry. Co. 826 

0. Lucas 518 

v. Murray 226 

v. State 195, 218, 464 

Hunt's Lessee v. McMahan 553 

Hunter, Ex parte 372 

v. Cobb 685 

v. Moore 667 

v. Nolf 924 

Hunting v. Johnson 514 

Huntington v. Attrill 43 

v. Cheesbro 286 

Huntsville v. Phelps 284 

Huntzinger v. Brock 406 

Hurford v. Omaha 112, 114 

Hurley v. Powell 751 

v. Van Wagner 924 

Hum, Ex parte 424 

Huron, Re 455 

v. Second Ward Natl. Bk. 322 

Huron Water Works Co. v. Huron 342 

Hurst v. Smith 496 

v. State 467 

v. Warner 272, 873 

Hurtado v. California 436, 4o6, 505 

Huse v. Glover 65, 688, 691, 864, 865 

v. Merriam 748 

Huson v. Dale 608 

Hussey v. Davis 431 

Hussman v. Durham 683 

Huston v. Wadsworth 46, 589 

Hutcheson v. Peck 485 

v. Storrie 731 

Hutchinson v. Brown 899 

v. Concord 301 

v. Lewis 629 

v. Olympia 856 

v. Parkersburg 812 

v. Wheeler 608 

Hutchinson & S. R. Co. v. Fox 322 

Hutson v. New York 356 

Hutton v. Camden 883 

v. State 263 

v. Webb 697 

Huus v. New York & R. R. S. Co. 12 

Hyatt v. Bates 80 

v. Rondout 357 

v. Taylor 89 

Hyde v. Brush 906 

i>. Cogan 346 

r. Jamaica 303 

v. Melvin 925 

v. White 219 

Hydes v. Joyes 294 

Hylton v. United States 680 



I. 



Idaho v. Rasmussen 
leek v. Anderson 



854, 881 
518 



Page 

Igoe v. State 209 

1 jams v. Duvall 100 

Illinois, &c. Co. v. Peoria Bridge 865 

Illinois & Mich. Canal v. Chicago & 

It. I. R. R. Co. 399 

Illinois Cent. R. R. Co. v. Arnold 842 

v. Chicago (138 111.) 763 

v. Chicago (141 111.) 806 

v. Chicago, &c. R. R. Co. 807 

v. Decatur 741 

v. Ihlenberg 121 

v. Illinois 851 

v. Irvin 396 

v. McLean 742 

v. People 394, 840 

v. Willenborg 839 

v. Wren 195 

Illinois Conf. Fern. Col. v. Cooper 278 

Illinois G. T. Ry. Co. v. Wade 320 

Ilsley v. Nichols 425 

Imlay v. Union Branch R. R. Co. 792, 795 

Indiana Cent. R. R. Co. v. Potts 119, 205, 

206, 207, 213 

Indianapolis v. C. Gas T. Co. 298 

v. Holt 731 

Indianapolis, e. R. R. Co. v. Kerche- 

val 399, 830, 836, 841, 842 

v. Smith 786 

v. Townsend 841, 842 

Indianapolis, B. & W. Ry. Co. v. 

Eberle 786, 791, 797 

Indianapolis Sun v. Horrell 606 

Indianapolis U. Ry. Co. v. Houlihan 889, 

891 

Ingalls v. Cole 89 

Inge v. Police Jury 769 

Ingersoll v. Nassau Elec. Ry. Co. 392 

Inglee v. Coolidge 30 

Inglis v. Sailors' Snug Harbor 33 

v. Shepherd 921 

Ingraham v. Geyer 178 

v. Regan 85 

Ingrum v. Colgan 696 

Inman v. Foster 644 

v. Tripp 304 

Inman Steamship Co. v. Tinker 691 

Innis v. Bolton 902 

Inst. for Ed. Mute, &c. v. Henderson 188 

Insurance Co. v. Morse 567 

v. Ritchie 544 

v. Treasurer 30 

?'. Yard 743 

Intendant of Greensboro' v. Mullins 280 

International T. B. Co. v. Weissin- 

ger 889 

Inter Ocean P. Co. v. Associated 

Press 877 

Inter State Com. Conn. 23 

Intoxicating Liquors, In re 849 

Invest. Com., In re 620 

Investment Co. v. Carpenter 127 

Inwood v. State 456 

Iowa C. Ry. Co. v. Iowa 20, 22 

Iowa Life Ins. Co. v. Lewis 563 

Iowa R. R. Land Co. v. Soper 521, 555 
Iowa Sav. & L. Ass'n v. Heidt 637 



Ixii 



TABLE OF CASES. 



Page 
Ireland v. Mackintosh 622 

v. Turnpike Co. 231, 414 

Iron Mountain Co. v. Haight 219 

Iron Mountain R. R. Co. v. Binghaiu 797 
Iron R. R. Co. v. Ironton 777 

Irons v. Field 606 

Irrigation Resolution, In re 73 

Irwin v. Great Southern Tel. Co. 804 
Isenhour v. State 253 

Isham v. Fullager 661 

v. Trustees 661 

Isom v. Mississippi, &c. R. R. Co. 247 
Israel v. Arthur 151, 646 

Ivanhoe v. Enterprise 729 

Iverson v. State 217 



J. 

Jack v. Thompson 
Jackson, Ex parte 

In re 

Matter of 

v. Butler 

v. Chew 

v. Commonwealth 

v. Hathaway 

v. Jackson 

v. Lyon 

v. Munson 

v. Newman 

v. Nimmo 

v. Reeves 



681 

432, 433 

40 

490, 494 

411 

33 

450, 452 

810 
679, 585 

515 

371 
283, 709 

129 

209 



v. Rutland & B. R. R. Co. 810, 842 

v. Shaw 183 

i-. Vedder 82 

v. Walker 924 

v. Winn's Heirs 814 

v. Young 114 

Jackson Iron Co. v. Auditor-General 687 

Jackson, &c. R. Co. v. Interstate, &c. 

Co. 299 
Jacksonville v. Drew 362 
. Led with 885, 887, 888 
Jacksonville El. Lt. Co. v. Jackson- 
ville 696 
Jacksonville, T. & K. W. Ry. Co. v. 

Adams 460 

Jacob v. Louisville 824 

Jacobs, In re 886 

v. Cone 452 

v. Marks 43 

v. Small wood 414 

Jacoway v. Denton 62, 405 

Jacques v. Litle 389 

Jahn, Re 691 

James v. Commonwealth 46 

v. Pine Bluff 281, 860 

v. Rowland 136 

v. Stull 412 

v. Wood 879 

Jameson v. People 276 

Jamesville & W. Ry. Co. v. Fisher 896 

Jamieson v. Ind. Nat. G. & O. C. 853 

v. Wiggin 894 

Jamison v. Burton 85, 86 



Page 

Jane v. Commonwealth 46 

Janes v. Reynolds 504 

Janesville v. Carpenter 787, 837 

Janson v. Stuart 606 

January v. January 413 

Janvrin, Re 131 

v. Exeter 310 

Jarnagan v. Fleming 608 

Jarvis v. Hatheway 619, 630 

Jaynes v. Omaha S. Ry. Co. 803 
Jefferson Branch Bank v. Skelley 35, 62 

176 

Jefferson City *-. Courtmire 281 
Jeffersonville, &c. R. R. Co. v. Dun- 
lap 217 
v. Hendricks 38 
v. Nichols 842 
v. Parkhurst 842 
Jeffrey v. Brokaw 751 
Jeffries v. Ankeny 664, 927 
v. Harrington 896 
v. Lawrence 271 
v. Williams 831 
Jeliff v. Newark 719 
Jenkins, Ex parte 492 
v. Andover 313 
v. Ballantyne 574 
v. Charleston 694 
v. Ewin 94 
v. Jenkins 614 
v. Thomasville 281 
v. Waldron 927 
Jennings v. Brown 911 
v. Coal Ridge Imp. & Coal Co. 16 
v. Paine 629, 633, 634 
v. Stafford 685 
Jensen v. Union Pac. Ry. Co. 842 
Jentzsch, Ex parte 837 
Jernigan v. Madisonville 163 
Jerome v. Ross 766 
Jersey City v. Elmendorf 213 
v. Kiernan 363 
J. E. Rumbell, The 26 
Jesler v. Bd. Harbor Com'rs 30 
Jessup v. Carnegie 180 
Jett v. Commonwealth 46 
Jewett v. New Haven 301 
Joannes v. Bennett 611, 612 
Jockleck v. Shawner Co. Com'rs 756, 759 
John v. C. R. & F. W. R. R. Co. 167 
John & Cherry Streets, Matter of 608, 764 
John Hancock M. L. Ins. Co. v. 

Warren 886 

Johns v. State 451, 676 

Johnson v. Atlantic, &c. R. R. Co. 757 

v. Beazley 80 

v. Bentley 636 

v. Bond 410 

v. Bradstreet Co. 61 1 

v. Brown . 647 

v. Campbell 332, 543 

v. Com'rs Wells Co. 182, 531 

v. Common Council 324 

v. Commonwealth 606 

v. De Bary-Baya M. Line 719 

v. Drummond 691 



TABLE OF CASES. 



Ixiii 



Page 

Johnson v. Fletcher 408 
v. Gebhaner 521 
v. Goodyear Min. Co. 660 
v. Higgins 207, 268, 404, 414 
v. Hudson R. R. Co. 89 
v. Joliet & Chicago R. R. Co. 107, 258 
v. Jones 517, 618 
v. Loper 691 
v. Martin 173 
v. Parkersburg 121; 784 
v. People 206, 904 
. Philadelphia .2, 283, 710 
v. Powers 44 
v. Railroad Co. 182 
v. Rich 171 
v. Richardson 538, 544 
v. San Diego 269 
v. School District 262 
v. Spicer 207 
v. Stack 167 
v. Stark Co. 325 
v. State (59 N. J.) 159 
v. State (1 Tex. App.) 451 
v. State (10 Tex.) 437 
v. State (29 Ark.) 470 
v. Taylor 538 
v. Wallace 589 
Johnson Co. v. January 321 
John Spry Lumber Co. v. Sault Sav- 
ings Bank 508 
Johnston v. Commonwealth 236, 675 
v. Dist. Columbia 302 
v. Louisville 272 
v. Old Colony R. Co. 809 
v. Riley 39, 40 
Johnstone v. Sutton 631 
Joliet v. Harwood 302, 362 
v. Verley 304 
Joliet, &c. R. R. Co. v. Jones 842 
Jolly v. Hawesville 305 
v. Terre Haute Drawbridge Co. 54, 

866 

Jones v. Black 232 

v. Boston 728, 736 

r. Brim 16, 22 

v. Carter 653 

v. Cavins 224 

v. Columbus 209 

v. Darnall 497 

v. Davis 215 

v. Driskell 682 

v. Duncan 669 

v. Erie & W. V. Ry. Co. 803,811 

v. Fletcher 430 

v. Galena, &c. R. R. Co. 841 

v. Harris 677 
v. Hutchinson 186, 193, 194, 221 

v. Jones ( 18 Ala.) 622 

r. Jones (104 N. Y.) 249 

v. Jones (2 Overt.) 156, 376 

v. Jones (12 Pa. St.) 156, 259 

v. Keep's Estate 684 

v. Leonard 39, 40 

v. Meehan 612 

v. Nebraska 262 
v. New Haven 366, 361, 363 



Page 

Jones v. People 846, 849 

v. Perry 134, 141, 146, 148, 603 

v. Richmond 265, 309, 878 

v. Robbins 249, 591 

v. Skinner 903 

v. State 382, 478, 908 

v. Surprise 178, 846, 849 

v. Thompson 212, 213 

v. Townsend 603, 624 

v. Weathersbee 80 

v. Williamsburg 301 

Jonesboro v. Cairo, &c. R. R. Co. 206 

Joplin Consol. Mining Co. v. Joplin 778 

Jordan v. Bailey 99 

v. Benwood 304, 782 

v. Moore 692 

v. Woodward 772 

Jordan's Case 444 

Joseph v. Randolph 693 

Joslyn v. Detroit 362 

Journeay v. Gibson 638, 641 

Joy v. Grindstone-Neck Water Co. 828 

v. St. Louis 396 

v. Thompson 416 

Joyce v. Woods 884 

Joyner v. School District 748 

Judd v. Judd 544 

Judefind v. State 860 

Judkins v. Hill 932 

Judson v. Bridgeport 761 

v. Reardon 283, 484 

Jugiro v. Brush 16 

Julia Bldg. Ass. v. Bell Tel. Co. 787 

Julieu v. Model B. & L. I. Co. 237 

v. Woodsmill 808 

Justice v. Commonwealth 400 

Justices v. Fennimore 694 

v. Murray 46 



K. 

Kahn v. Sutro 
Kaine, Matter of 

v. Commonwealth 
Kalloch v. Superior Court 
Kaminitsky v. R. R. Co. 
Kane v. Baltimore 

v. Commonwealth 

v. Cook 

v. N. Y. E. Ry. Co. 

v. People 
Kansas v. Ziebold 
Kansas City v. Baird 

v. Clark 

v. Corrigan 

v. Huling 

v. Ry. Co. 

v. Whipple 

Kansas City, &c. Ry. Co. , 
Kansas City, St. J., &c. R. 

St. Joseph, &c. Co. 
Kansas City, St. J. & C. B. 

v. Terminal Ry. Co. 
Kansas, N. & D. Ry. Co. v. 
dall 



99 
495 
657 

436, 506 
843 
769 
464 
42 
801 
474 
690 
729 
232 
278 
618 
231 

706, 894 
Pettes 763 
R. Co. v. 



Ry. Co. 
Cuyken- 



811 
754 

787 



Ixiv 



TABLE OF CASES. 



Page 

Kansas Pacific R. R. Co. v. Mower 841 

Karney v. Paisley 625 

Katzenberger v. Aberdeen 320 

v. Larvo 279 

Kauclier v. Blinn 606 

Kaufman v. Dostal 850 
Kauffman v. Tacoma, O. & G. H. 

Ry. Co. 803 

v. Wooters 16 
Kaukauna W. P. Co. v. Green Bay 

& M. Canal Co. 32, 769, 782 

Kayser v. Bremen 363 

Kaysville City v. Ellison 721, 759 

Kean v. McLaughlin 631 

v. Stetson 862 

Kearney, Ex parte (55 Cal.) 495 

Ex parte (7 Wheat.) 495 

Kearns v. Howley 899 

Keasy v. Louisville 296 

Keating v. Cincinnati 304 

Keator L. Co. v. St. Croix B. Co. 865 

Keddie v. Moore 590, 591 

Kedrolivansky v. Niebaum 607 

Keeler, Ex parte 456, 471, 474 

Keen v. State 376, 382 

Keen an v. Cook 906 

Keene v. Clarke 30 

Keese v. Denver 736 

Kehrer v. Richmond 304, 783 

Keith v. Clark 386 

v. Keith 534 

v. Kellogg 589 

v. State 848 

v. Ware 517 

Keller v. Corpus Christi 757 

v. State 209 

Kelley v. Boston, &c. R. R. Co. 629 

v. Corson 748, 750 

v. Minneapolis 318 

v. Partington 607 

v. Pike 81 

v. Rhodes 690 

v. Schuyler 425 

v. Sherlock 627, 648 

Kellinger v. Railroad Co. 794 

Kellogg, Ex parte 496, 587 

v. Hickman 903, 911, 934 

v. Janesville 356 

v. Oshkosh 175 

v. State Treasurer 254 

v. Union Co. 865 

Kelly v. Bemis 259 

v. Flaherty 607 

v. Marshall 311, 333, 705 

v. McCarthy 615 

v. Meeks ' 183, 253, 265 

v. Milan 320 

v. Minneapolis 297 

v. People 474 

v. Pittsburgh 46, 606, 722 

v. Tinling 627, 628, 648 

v. United States 177 

Kelsey v. King 800 

Kemmter, Re 473 

Kemp, In re 454 

Kemper v. McClelland 748, 749 



Kendall, Ex parte 

In re 

v. Canton 

v. Dodge 

v. Kingston 

v. State 

v. United States 
Rendition v. Maltby 
Kendricks v. State 
Kennard v. Louisiana 



Page 
439 
898 
388 
617 

73, 253, 625 
469 

48 
620 
451 

20 



Kennebec Purchase v. Laboree 509 

Kennedy, Ex parte 174, 860 

In re 408 

v. Board of Health 883 

v. Insurance Co. 614 

v. McCarthy 83 

v. Phelps 854, 883 

v. Sacramento 110 

Kennedy's Case 161 

Kennett's Petition 781, 785 

Kennisen v. Beverly 304 

Kent v. Bongartz 618 

v. Kentland 711 

t>. Worthington Local Board 356 

Kentish Artillery v. Gardiner 592 

Kentucky v. Dennison 39, 40, 41 

Kentucky R. R. Tax Cases 19 

Kentworthy v. Ironton 363 

Kenyon v. Stewart 406 

Keokuk v. Packet Co. 65 

Keokuk & H. Bridge Co. v. Illinois 691 

Keokuk N. L. Packet Co v. Keokuk 247 

Keokuk & W. Ry. Co. v. Missouri 397 

Ker v. Illinois 81, 40, 41 

Kermott v. Ayer 62 

Kerr, Matter of 398 

v. Dougherty 180 

v. Jones 895 

v. Kerr 679 

v. Kitchen 146, 149 

v. Union Bank 80 

Kerrigan, Ex parte 454 

Kershaw v. Bailey 619 

Kersten v. Milwaukee 731 

Kerwhacker r. Cleveland, &c. R. R. 

Co. 788 

Ketchara v. McNamara 416 

Ketchum v. Buffalo 270 

Kettering v. Jacksonville 363, 845 

Kettle Riv. Ry. Co. v. Eastern Ry. 

Co. 763, 767 

Keymer, Re 158, 159 

Keyser v. Stansifer 660, 661 

Kibbe v. Kibbe 41 

Kibby v. Chetwood's Adm'rs 146 

Kibele v. Philadelphia 362 

Kidd v. Pierson 848, 849 

Kidder v. Parkhurst 629, 630 

Kieffer, Ex parte 854 

Kiehe v. South Bend 321 

Kies v. Lowery 65 

Kilbourn, Matter of 193 

v. Thompson 190, 193 

Kilburn v. Woodworth 41, 583 

Kile v. Montgomery 574 

Kiley v. Kansas City 302 



TABLE OF CASES. 



Ixv 



Page 

Kilgore v. Commonwealth 217 

v. Magee 183 

Kilham v. Ward 927 

Kilpatrick v. Smith 162 
Kimball v. Alcorn 864, 898, 928 

v. Grantsville City 74, 721 

v. Kimball 679 

r. Rosendale 645, 751 
Kimble v. Whitewater Valley Canal 819 

Kimbro v. Bank of Fulton 623 

Kimmish v. Ball 38, 881 

Kincaid v. Hardin 305 
v. Indianapolis N. G. Co. 791, 804 
Kincaid's Appeal 176, 295, 881 

Kindel v. Beck & P. L. Co. 180 

Kine v. Defenbaugh 121 

v. Sewell 630 

King v. Belcher 623 

v. Burdett 688 
v. Cross 20, 43, 605 
v. Davenport 285, 878, 884 

v. Dedham Bank 132, 392 

v. Hayes 506 

t7. Hopkins 689 

v. Hunter 99, 389 

v. Moore 223 

v. Mullens 21, 749 

v. Patterson 611 

v. Portland 732 

v. Reed 169 
v. Root 623, 628, 642, 644, 656 

v. Wilson 34 

King, The, v. Abington 650 

v. Almon 453 

v. Bailie 648 

v. Bedford Level 897 

v. Campbell 609 

w. Carlile 638, 671 

v. Chancellor of Cambridge 581 

v. Clement 643 

v. Clewes 445 

v. Cooper 447 

v. Cox 84 

v. Creevey 650 

v. l)e Mannville 497 

v. Dunn 445 

v. Ellis 443 

v. Enoch 445 

v. Fisher 638, 640 

v. Fletcher 473 
v. Foxcroft 893, 931, 932 

17. Gardner 361 

v. Hagan 452 

v. Hawkins 932 

v. Howes 447 

v. Inhal). of Hardwick 350 

v. Inhab. of Hipswell 110 

v. Inhab. of St. Gregory 1 10 

v. Inhab. of Woburn 350 

v. Kingston 445 

v. Lee 638 

v. Lewis 443 

r. Locksdale 110 
. Mayor of Stratford on Avon 276 

v. Miller 652 

v. Monday 932 



King, The, v. Newman 

v. Paine 

17. Parry 

i;. Partridge 

v. Richards 

v. River 

v. Rosewell 

v. Simpson 

v. Smith 

. St. Olaves 

v. Sutton 

v. Taylor 

i?. Thomas 

v. Tizzard 

v. Tubbs 

v. Waddington 

v. Walkley 

v. Webb 

v. Withers 

v. Woodfall 

v. Woolston 

v. Younger 
Kingley v. Cousins 
Kingman, Re 

v. Brockton 



Page 
644 
612 
932 
445 
447 
443 
884 
445 
443 
904 
139 
671 
445 
894 
424 

671, 673 
445 
443 
931 
652 

671, 673 
84 
416 

131, 267, 697, 713, 741 
696 



Kingman Co. Com'rs v. Leonard 21 

Kingshury's Case 40 

Kingsland v. Mayor, &c. 566, 787, 822 

Kinkead v. McKee 661 

Kinmundy v. Mahan 294 

Kinne v. Hinman 689 

Kinneen v. Wells 908 

Kinney, Ex parte 557 

v. Beverley 503 

Kinney 's Case 657 

Kinsworthy v. Mitchell 748 

Kip y. Patterson 283, 285 

Kipp v. Elwell 670 

Kirby v. Boylston Market 286 

v. Pennsylvania R. R. Co. 842 



v. Shaw 
Kirk v. Nowill 

v. Rhodes 

v. State 
Kirkman v. Bird 



242, 337, 338, 679 
292 
911 
459 
617 



Kirkpatrick v. Eagle Lodge 619 
Kirthind v. Hotchkiss 18, 20, 568, 679 
Kisler v. Cameron 936 
Kistler v. State 466 
Kistner v. Indianapolis 301 
Kittanning Coal Co. v. Common- 
wealth 707 
Klein v. New Orleans 270 

v. Valerius 129 

Kleinschmidt v. Dumphy 458 

Kleizer v. Symmes 619 

Klewin v. Bauman 607 

Klinck v. Colby 610, 619 

Kline v. Kline 684 

Kling v. Fries 850 

Klingler v. Bickel 878 

Klumph v. Dunn 605 

Knapp w. Grant 338, 542 

v. Thomas 161 
Knapp, Stout, &c. Co. v. McCaffrey 23 

Kneass's Appeal 149 



Ixvi 



TABLE OF CASES. 



Page 

Knee v. Baltimore City P. Ry. Co. 87 
Kneedler v. Lane 18 

Kneedler v. Norristown 286, 292 

Kneeland v. Milwaukee 84, 87, 108, 742 

v. Pittsburgh 769 

Kneetle v. Newcomb 252 

Knight v. Begole 629 

v. Foster 608, 644 

v. Gibbs 608 

Kniper v. Louisville 272 

Knisely v. Cotterel 707, 887 

Knobloch v. Chicago, &c. Ry. Co. 285 
Knoop v. Piqua Bank 395 

Knopf v. People 184 

Knote v. United States 160 

Knoulton v. Redenbaugh 529 

Knowles v. People 449, 564 

v. Yeates 930 

Knowlton v. Moore 92, 684, 708 

v. Williams 335, 340, 696 

Knox v. Bd. of Education 272 

v. Chaloner 861 

v. Cleveland 521 

v. Rossi 685 

Knox Co. v. Aspinwall 323 

v. Ninth Natl. Bk. 31, 322 

Knoxville v. King 506 

Knoxville Iron Co. v. Harbison 877 

Knoxville, &c. R. R. Co. v. Hicks 128 
Kobs v. Minneapolis 362 

Kochersperger v. Drake 708 

Koehler v. Hill 60, 194, 195, 892 

v. Miller 515 

Koenig v. Chicago B. & Q. R. Co. 181, 763 
Koerper v. St. P. & N. P. Ry. Co. 828 
Koestenbader v. Pierce 825 

Kohe v. Lehlback 22 

Kohl v. United States 755, 756 

Kohlheimer v. State 468 

Koontz v. Franklin Co. 388 

v. Nabb ' 85 

Kosciusco Co. v. Slomberg 290 

Koser, Ex parte 676 

Koshkonong v. Burton 523 

Kountze v. Morris Aqueduct 767, 777 

v. Omaha 259 

Kraft v. Wickey 584 

Kramer v. Cleveland, &c. R. R. Co. 760, 

764 

v. Kister 478 

Kranz v. Mayor, &c. of Baltimore 304 
Krebs v. Oliver 606 

Kreidler v. State 898 

Kreiger v. Shelby R. R. Co. 30 

Kreitz v. Behrensmeyer 903, 904, 914, 
916, 917, 919 

Kremer v. C. M. & St. P. Ry. Co. 827 
Kring v. Missouri 375, 381 

Krone v. Krone 524 

Kroop v. Form an 760 

Krueger v. Wisconsin Tel'ne Co. 804 
Kuback, Re 279 

Kuckler v. People 381 

Kuehner v. Freeport 715 

Knlm v. Board of Education 267 

. Common Council 558 



Kuhns v. Kramis 
Kulp v. Flemming 
Kundinger v. Saginaw 
Kunkle v. Franklin 
Kuntz v. Sumption 
Kunz v. Troy 
Kurtz v. People 
Kuykendall v. Barker 
Kyle v. Jenkins 

v. Malin 

v. Texas & N. O. Ry. Co. 



L. 



Page 
212 
32 
548 
542 
712 
362 

206, 207, 209, 859 
907, 929 
372 
272 
763, 766 



Labrie v. Manchester 272 

Lacey, Ex parte 287 

v. Davis 526 

Lackawana Iron Co. v. Little Wolf 114 

Lackey v. United States 901 

Lackland v. North Mo. R. R. Co. 266, 

272, 788, 789 

La Croix v. Co. Com'rs 400, 454, 548 

Lacy, Ex parte 213, 853 

v. Davis 749 

v. Martin 162 

Ladd v. Rice 478 

Laefon v. Dufoe 209 

Lafarier v. Grand Trunk Ry. Co. 870 

La Fayette v. Bush 296, 783 

v. Cox 270, 271, 318, 319 

v. Fowler 296, 728, 730 

v. Jenners 253 

v. Nagle 296 

v. Orphan Asylum 741 

c. Timberlake 301 

La Fayette Plank Road Co. v. New 

Albany, &c. R. R. Co. 785 

Lafayette, &c. R. R. Co. v. Geiger 104, 

166 

v. Winslow 807 

Lafferty v. Huffman 195 

v. Schuylkill Riv. E. S. Ry. Co. 788 
Lahr v. Metr. El. Ry. Co. 799 

Lahr's Case 800 

Laing v. Ridney 44 

Lake, Matter of 527 

Lake Erie, &c. R, R. Co. v. Heath 46, 690 
Lake Erie & Western Ry. Co. v. 

Kokomo 806 

v. Com'rs of Seneca Co. 768 

v. Scott 785 

Lake Pleasanton W. Co. v. Contra 

Costa W. Co. 769 

Lake Roland El. Ry. Co. v. Baltimore 297 

L. S. & M. S. Ry. Co. v. Chicago 827 

v. Grand Rapids 741 

v. Ohio (165 U. S.) 865 

v. Ohio (173 U. S.) 852 

v. Smith 875 

Lake St. El. Ry. Co. v. Chicago 715 

Lake Shore, &c. It. R. Co. v. Chicago, 

&c. R. R. Co. 754, 758, 785 

Lake View v. Rose Hill Cemetery 268, 

881 
v. Tate 289, 290 



TABLE OF CASES. 



Ixvii 



Page 

Lake View School Trustees v. People 263 

Lamar W. E. L. Co. v. Lamar 318 

Lamb v. Lane 120, 818 

v. Lynd 189 

v. Sehotter 815 

Lambert, Re 681 

v. Smith 194 

Lambertson v. Hogan 137 

Lamm v. Chicago M. & St. P. Ry. Co. 828 

Lammert v. Lidwell 166, 173 

Lancaster v. Barr 669 

Lance v. Dugan 42 

Lancey v. Clifford 861 

v. King County 318, 756 

Lander v. Seaver 486 

Landers v. Frank St. M. E. Ch. 661 

Landis v. Campbell 619 

Landon v. Litchfield 396 

Lane v. Commonwealth 159 

v. Dorman 147, 253, 503 

. Nelson 161, 529, 531 

v. Spokane Falls & N. R, Co. 424 

v. Vick 33 

Lanfear v. Mayor 594 

Lang v. Lynch 846, 848, 849 

Langan i>, Atchison 362 

Langdon v. Applegate 85, 216 

v. Mayor 787 

Lange, Ex parte 473 

Langenberg v. Decker 425 

Langford v. Fly 517 

v. Kamsey Co. 814 

v. United States 24 

Langhammer v. Munter 903 

Langhorne v. Robinson 720 

Langworthy v. Dubuque 266, 721 

Lanier v. Gallatas 137, 921, 930 

Lankford v. Somerset Co. 195, 219 

Lanning v. Carpenter 364, 926 

v. Christy 630 

Lansing v. Carpenter 629 

v. Lansing 924 

v. Smith 785 

v. Stone 52 

v. Toolan 302 

v. Van Gorder 274 

Lantz v. Hightstown 400 

Lanzetti, Succession of 208 

Lapeyre v. United States 160 

La Plaisance Bay Harbor Co. v. 

Monroe 55 

La Porte v. Gamewell 318 

Laramie Co. v. Albany Co. 266 

Larkin v. Noonan 618 

v. Saginaw 302 

Lamed v. Wheeler 927 

Larrison v. Peoria, &c. R. R. Co. 194, 218 

Larson v. Furlong 863 

v. Grand Forks 363 

Lascelles v. Georgia 41 

Lashee v. People 184, 555, 561 

Lassiter v. Lee 518 

Lasure v. State 382 

Latah County v. Peterson 765, 767 

Lathrop v. Mills 246 

v. Snyder 689 



Latless v. Holmes 222 

La uck's Appeal 415 

Laude v. Chicago, &c. R. R. Co. 97 

Lauer v. State 209 

Laura, The 161 

Laurens v. Elmore 694 

Laurence v. Ingersoll 202 

Laval v. Meyers 924 

Lavalle v. Strobel 62 

Law, Ex parte 370, 372 

v. People 120 

Lawler v. Earle 612 

Lawrence, In re 612 

v. Born 691 

v. Great Nor. R. R. Co. 819 

v. Louisville 622 

v. Miller 614 

v. Nelson 28 

Lawrenceburg v. Wuest 280 

Lawson v. Hicks 633 

v. Jeffries 62, 138, 660 

Lawton v. Steele 22, 831, 879, 885 

v. Waite 624 

Lawyer v. Cipperly 660 

Lay r. Sheppard 633, 653 

Layton v. New Orleans 269, 336, 341 

Lea v. Lea 80 

v. White 630, 633 

Leach, Re 130 

v. Money 434 

v. People 897, 898 

Leadville Coal Co. v. McCreery 27 

League v. Journeay 880 

Lea veil v. Western U. T. Co. 690 

Leaven worth v. Duffy 296 

v. Norton 272 

v. Rankin 324 

Leaven worth Co. v. Lang 712 

v. Miller 167, 325 

Leavitt v. Canadian P. Ry. Co. 570 

v. Watson 751 

Lebanon v. Olcott 777 

Lebanon Sch. Dist. v. Female Sem. 507 

Le Barron v. Le Barren 66 

Le Claire v. Davenport 284, 887 

Le Due v. Hastings 739 

Lee v. Flemingsburgh 310 

v. McClelland 423, 485 

u. Minneapolis 296 

;. Murphy 161 

. Pembroke Iron Co. 786 

v. Sandy Hill 356, 362 

v. Springfield Water Power Co. 8^7 

v. State 69, 468 

v. Rturges 738 

v. Tillotson 251 

Leeds v. Camden & A. Ry. Co. 826 

Leep v. St. Louis I. M. & S. Ry. Co. 672 

Leeper v. State 262 

v. Texas 14, 22, 457 

Leefe, Matter of 594 

Lefever v. Detroit 741 

Lefferts v. Supervisors 711 

Leffingwell v. Warren 34, 521, 523 

Legal Tender Case 14 

Leger v. Warren 425 



Ixviii 



TABLE OF CASES. 



Page 

Legg v. Annapolis 186, 218 
Leggett v. Hunter 128, 146 
Legislative Adjournment, Re 189 
Lehew v. Brummell 574 
Leliigh Co. v. Hoflbrt 301 
Leliigh Iron Co. v. Lower Macungie 120 
Leliigh Valley Ry. Co. v. Common- 
wealth 404 
v. Dover, &c. R. R. Co. 785 
v. Pennsylvania 680 
Lehigh V. Water Co.'s Appeal 549 
Lehigh Water Co. v. Easton 30, 383 
Lehman v. McBride 216, 903 
Lelm v. San Francisco 304 
L'Hote v. New Orleans 21, 884 
Leicht v. Burlington 726 
Leigh v. State 936 
Leisy v. Hardin 846, 847 
Leith v. Leith 579 
Leland v. Wilkinson 134 
Leloup i7. Port of Mobile 689 
Lemley v. State 848 
Lemmon v. Chicago, &c. R. R. Co. 841 
v. People 37 
Lemmons v. People 118 
v. Wells 605 
Lemont v. Jenks 16 
Lennon v. New York 516, 517, 531 
Lent v. Tillson 22, 588 
Lenz v. Charlton 506, 526 
Leominster v. Conant 736 
Leonard v. Commonwealth 895 
v. Wiseman 91 
Leprohon v. Ottawa 682 
Leroy & W. R. R. Co. v. Ross 825 
Les Bois v. Bramel 540 
Leslie v. Bonte 82 
t>. State 470 
Lessley v. Phipps 408 
Lester v. State 469 
v. Thurmond 633 
Levan v. Millholland 588 
Levee District No. 9 v. Farmer 781 
Levi r. Louisville 718 
Levins v. Sleator 153, 156 
Levy v. Hitsche 405 
t7. State 279, 280 
17. Superior Ct. of San Francisco 450 
Lewis i 1 . Chapman 610,611 
v. Clement 637 
v. Commissioners 936 
p. Few 622, 624, 644 
v. Foster 537 
v Garrett's Adm'r 581 
v. Hawley 606 
v. Lervelling 100 
v. Levy 637, 638, 647 
17. Lewis 415 
t7. McElvain 615, 535 
v. Monson 750 
17. N. Y. & H. R. Co. 800 
v. State 19 
V. Thornton 84 
v. Walter 637 
v. Webb 137, 152, 237, 521, 559 
Lewis Adm'r of Lewis v. Dunne 211, 216 



Lewis's Appeal 
Lexington v. Butler 

v. Long 

v. McQuillan's Heirs 

v. Thompson 



Page 

128, 237 
321 

822, 823, 824 
717, 732 
65, 240, 244 



Lexington, &c. R. R. Co. v. Apple- 
gate 791 
Ley man v. Latimer 606 
Libby v. Burnham 749 
License Cases 690, 831, 832, 845, 850, 881 
License Tax Cases 238. 832, 846, 851 
Lieberman v. State 454, 558 
Life Association v. Assessors 111 
Ligat v. Commonwealth 817 
Lightburne v. Taxing District. 713 
Liles v. Caster 629 
Lillard v. State 474 
Lima v. Cemetery Ass. 741 
Limestone Co. v. Fagley 569 
v. Rather 114 
Lincoln v. Alexander 141, 145 
17. Boston 302, 357 
v. Com. 804, 827 
v. Davis 752 
17. Hapgood 904, 927 
v. Iron Co. 321 
v. Smith 46, 458, 591, 846, 849, 850 
?;. Tower 42 
Lincoln Park, Re 815, 817 
Lindenmuller v. People 859 
Lindholm v. St. Paul 363 
Lindsay v. Commissioners 228 
Lindsay & P. Co. v. Mullen 21, 862 
Lindsey v. Hill 181 
v. Smith 606 
Lindsley r. Coats 52 
Lindstrom v. Bd. of Canvassers 900 
Lindzey v. State 381 
Linehan, In re 881 
Liness v. Hesing 925 
Linford v. Ellison 28 
v. Fitzroy 439 
Lining v. Bentham 454 
Linn v. Chatnbersburg 696 
i7. Minor 87 
Linney v. Maton 607 
Lin Sing v. Washburn 557,690, 725, 858 
Linsley v. Hubbard 146 
Linton v. Stanton 31 
Lipes 17. Hand 590 
Lippman v. People 425 
Lisbon v. Bath 745 
Litchfield v. McComber 406 
v. Vernon 698 
Litowich v. Litowich 680 
Little, Re 41 
v. Fitts 575 
y. Madison 305 
v. Merrill 275 
t>. Smith 85, 86 
Littlefield o. Brooks 903 
r. State 283 
Littlejohn v. Greeley 628 
Little Miami R. R. v. Collett 823 
v. Dayton 758 
Little Rock v. Katzenstein 729 



TABLE OF CASES. 



Ixix 



Page 

Little Rock v. Willis 304 

Little Kock, &c. K. R. Co. v. Payne 527, 

841 

v. Brooks 861 

v. Hanniford 566 

v. McGehee 822 

v. Woodruff 822 

Littleton v. Richardson 581 

v. Smith 586 

Littlewort v. Davis 262 

Live Stock, &c. Association v. Cres- 
cent City, &c. Co. 863, 854 

(See Slaughter House Cases.) 

Liverman v. Roanoke & T. Ry. Co. 827 

Livermore v. Waite 96 

Liverpool & London & Globe Ins. Co. 

v. Bd. of Assessors (44 La. 

Ann.) 720 

t>. Bd. of Assessors (51 La. Ann.) 719 
Liverpool & L. L. & F. Ins. Co. v. 

Massachusetts 687 

Livingston v. Los Angeles Sup. Ct. 487 

. Mayor, &c. N. Y. 735 

v. New York 717, 728, 735 

v. Paducah 709 

v. Rector, &c. 661 

. Van In gen 49 

Livingston Co. v. Darlington 337, 704 

v. Weider 337, 704 

Livingston's Lessee v. Moore 46 

Lloyd v. Chambers 570 

v. Matthews 39 

v. New York 357, 361, 362 

Loan Association v. Topeka 125, 317, 678, 

700, 705 

Lobrano v. Nelligan 146 

Locke o. Bradstreet Co. 611 

v. Dane 374, 531 

v. Speed 130 

Locke's Appeal 173 

Lockhart v. Horn 522 

w. Locke 42 

v. Troy 209 

Lock Haven Bridge Co. v. Clinton 

County 755 

Lock port v. Gaylord 212 

Lockwood, Ex parte 32, 568, 890 

v. St. Louis 741 

v. Wabash R. Co. 298 

Lodi Tp. v. State 183 

Loeb v. Attica 281 

v. Columbia Tp. Trustees 32 

v. Mathis 86 

Loeffner v. State 437 

Loesch v. Koehler 570 

Logan v. Matthews 859 

v. Onachita Parish 121 

v. Pyne 272, 285 

v. Stogdale 765 

u. United States 23, 568 

r. Walton 674 

Logansport v. Dick 362 

Logue v Commonwealth 434 

Lombard v. Antioch College 618 

Lommen r. Minneapolis 458 

Lonas v. State 557 



Page 

Londener v. Lichtenheim 677 

London, Mayor, Case of 490 

Londonderry v. Andover 276 

Long r. Fuller 769, 814 

17. Long 927 

v. Peters 610 

v. State 837, 885, 889 

v. Taxing District 287 

Long's Case 445 

Long Island R. R. Co., Matter of 933 

Long Island W. S. Co. v. Brooklyn, 393, 

769 

Longworth v. Worthington 653 

Lonthan v. Com. 603 

Look v. Dean 829 

Looker v. Maynard 394 

Loomis v. Colemau 262 

v. Jackson 61, 929 

v. Wadhams 588 

Lord v. Chadbourne 615 

v. Litchfield 396, 547 

v. Steamship Co. 12 

v. Thomas 404 

v. Wilcox 82 

Lorenzen, Ex parte 282,510 

Lorillard v. Clyde 83 

v. Monroe 355 

Loring v. Hildreth 609 

i\ Marsh 34 

Lorman v. Benson 52, 861 

t7. Clarke 48 

Los Angeles v. Los Angeles Water 

Co. 386, 405 

v. Water Co. 391 

Los Angeles Co. v. Reyes 765 

v. Spencer 882 

Los Ass'n, Re 439 

Lothrop v. Commercial Bank 180 

v. Steadman 74, 139, 149, 165, 887 

Lott v. Morgan 691 

v. Ross 745 

Loughbridge v. Harris 773, 775 

Lougher v. Soto 183 

Loughlin v. McCauley 25 

Louisiana v. Bd. of Assessors 740 

v. Jumel 24 

v. New Orleans 20,387,411 

v. Pilsbury 405 

v. Police Jury 387 

17. Texas 23 

Louisiana C. &. I. Co. v. I. C. Ry. 

Co. 266 

Louisiana State Lottery v. Richoux 194 

Louisville v. Bank of Louisville 396 

v Commonwealth 361 

17. Hyatt 304, 717 

17. Rolling Mill Co. 296 

v. University 345 

Louisville N. A. & C. Ry. Co. v. 

Wallace 674 

Louisville N. O. & T. Ry. Co. t;. 

Blythe 

Louisville, &c. Co. v. Ballard 
Louisville, &c. R. R. Co. v. Baldwin 



v. Burke 



147 
209 
19, 

857 
844 



Ixx 



TABLE OF CASES. 



Page 

Louisville, &c. R. K. Co. v. Caster 843 
v. Davidson 167 

v. Palmes 35, 396 

v. State 707, 743, 840 

Louisville & N. Ry. Co. v. Baldwin 844 
v. Com. (99 Ky.) 1(54 

v. Com. (104 Ky.) 162 

v. County Court 926 

v. Enbank 856 

v. Ingram 82!) 

v. Kentucky (99 Ky.) 164, 875 

v. Kentucky (161 U. S.) 838, 852 
v. Kentucky (183 U. S.) 856 

v. Schmidt 20 

v. Thompson 825 

v. Whitely 758, 763, 806 

Louisville City R. R. Co. v. Louis- 
ville 295, 299 
Louisville Gas Co. v. Citizens' Gas 

Co. 35, 402 

Louisville Ry. Co. v. Foster 811 

Louisville Safety U. & T. Co. v. 

Louisville & N. R. Co. 574 

Louisville Water Co. v. Clark 396 

c. Kentucky 396 

Loumand v. New Orleans 415 

Love v. Moynahan 485 

v. Raleigh 302 

r. Shartzer 553 

Loveland v. Detroit 310 

Lovell v. Leeback 425 

Lovingston v. Trustees 710 

v. Wider 339, 543, 703 

Low, Ex parts 706 

v. Blanchard 86 

v. Dunham 113 

v. Galena & C. U. R. R. Co. 780 

17. Towns 162 

Low Rees Printing Co. 570 

Lowe, Re 562 

U. Commonwealth 99, 389 

r. Harris 632 

v. Kansas 16, 22 

Lowell w. Boston 243, 317, 700 

r. Hadley 113, 860 

17. Oliver 330, 331 

Lowenberg v. People 473 

Loweree v. Newark 814, 816 

Lowndes v. Town of Huntington 32 

Lowndes Co. v. Hunter 247 

Lowry v. Francis 386 

v. Rainwater 431 

Lucas v. Case 619, 661 

v. Sawyer 514 

r. Tucker 632 

Ludeling v. Chaffe 27, 30 

Ludlow v. Johnson 516 

Ludlow's Heirs v. Johnson 89 

Ludwig v. Cramer 606, 637 

v. Stewart 523 

Luehrman v. Taxing District 259, 267 

Lunian v. Hitchins Bros. Co. 569 

Lumbard v. Aldrich 180 

Lumsden 17. Cross 526, 700, 717, 730 

Lund 17. New Bedford 760 

Lunt's Case 237 



Page 

Luques v. Dresden 312 

Lusher v. Scites 257 

Luther v. Borden 46, 58, 59, 892 

Luxton v. North River Bridge Co. 756 
Lycoming v. Union 539 

Lyddy v. Long Island City 217 

Lydecker v. Palisade Land Co. 748 

Lyle v. Richards 62 

Lyman i?. Boston & Worcester R. R. 

Co. 841 

v. Martin 902 

v. Mower 517 

Lyme v. Turner 356, 361 

Lynch, Ex parte 707 

v. Brudie 553 

v. Forbes 777, 779 

v. Hoffman 372 

v. New York 296, 302 

v. State 465, 480 

Lynchburg v. Slaughter 322 

Lynde v. County 319 

v. Lynde 44 

Lyon v. Circuit Judge 85 

v. Jerome 294, 756, 778, 814 

f. Lyon 580 

r. Manhattan Ry. Co. 424 

17. McDonald 804 

v. Morris 258, 517 

Lyon's Case 613 

Lyons v. Chamberlain 324 

Lythe v. Lansing 319, 320 



M. 

Mabry v. Baxter 407 

MacDougall v. Knight 687 

Machette w. Wanless 478 

Machine Co. v. Gage 693 

Machir v. Moore 924 

Mackaboy v. Commonwealth 687 

Mackay c. Ford 632 

Mackel v. Rochester 442 

Mackin v. United States 436 

Macon v. Hill 296 

v. Jones 745 

. Macon & Western R. R. Co. 272 

v. Patty 717, 860 

Macon & A. Ry. Co. v. Riggs 766 

Macon & Western R. R. Co. v. Davis 237, 

253 

Macreiuly v. Wolcott 485 

Macy v. Indianapolis 783 

Mad'dox, Re 559 

v. Graham 80 

Maddrey v. Cox 267 

Madison v. Daley 762 

Madison Co. v. People 743 
Madison & Ind. R. R. Co. v. Norwich 

Savings Society 321, 324 

v. Whiteneck 237,841 

Madisonville v. Bishop 306 

Magee v. Commonwealth 730 

17. Overshiner 804 

, v. Supervisors 936 

v. Young 614 



TABLE OF CASES. 



Ixxi 



Magoun v. Illinois Tr. & Sav. Bank 663, 

684, 708 
Magruder, Ex parte 372 

v. Governor 162 

Maguire, Matter of 890 

v. Maguire 403, 579, 580, 584, 585 
Magurn v. Magurn 680, 584 

Mahala v. State 469 

Malian v. Cavender 690 

Maher v. People 434, 450, 466 

Mahomet v. Quackenbush 208 

Mahon v. Justice 39 

v. New York Central R. R. Co. 791 
Mahoney v. Comry 702 

Mahony v. Bank of the State 278 

Mahony's Estate, Re 16, 30 

Maiden v. Ingersoll 25 

Maier, Ex parte 880 

Maine v. Grand Trunk Ry. of Canada 692 
Maine Water Co. v. Waterville 742 

Mairs v. Manhattan, &c. Ass. 786 

Maize v. State 163, 173, 237, 247 

Malcolmson v. Scott 39 

Malison, In re 439 

Mallett o. Nortli Carolina 375, 382 

Mallory ,: Hiles 223 

v. Pioneer Press Co. 644 

Malone v. Clark 588 

v. Stewart 607 

Maloy v. Marietta 75, 717, 728, 745, 746 
Maltus v. Shields 702 

Manchester, Matter of 40 

W.Massachusetts 177,852,879 

Maney, Re 40 

Mankato v. Arnold 454 

v. Fowler 283, 709 

Man ley v. Manley 679, 584 

Manly v. Raleigh 265 

v. State 92, 93, 102, 459 

Manning v. Van Buren 262 

v. Weeks 22 

Mannix v. Purcell 660 

Mansfield v. Mclntyre 679, 584 

v. Moore 356 

Mansfield, &c. R. R. Co. v. Clark 777 
Mansion v. Mclntosh 900 

Manufacturer's G. & O. Co. v. Indi- 
ana N. G. & O. Co. 788, 858 
Mapel v. John 880 
Mapes v. Weeks 644 
Marbury v. Madison 78 
March v. Commonwealth 279 

r. Portsmouth, &c. R. R. Co. 757 
Marchant v. Langworthy 113 

. Pa. Ry. Co. 16, 22 

Marcum v. Ballot Com'rs 899 

Marcy v. Oswego 321 

Marietta v. Fearing 291, 389 

Mariner v. Dyer 453 

Marion v. Epler 717, 728 

v. State 177, 381, 382 

Marion, &c. Ry. Co. v. Champlin 707 
Mark v. State 224 258 

Markey v. Queen's County 305 

Market v. St. Louis 363 

Marks, Ex parte 161 



Marks v. Baker 

v. Morris 

v. Purdue University 
Marlatt v. Silk 
Marler v. State 
Marlow v. Adams 
Marmet v. State 



Page 

628 

52 

182, 337, 704 

33 

451 

553 

555 



Marquette Co. v. Ishpeming Treas. 355 

Marron, In re 691 

Marsh v. Chesnut 112 

v. Ellsworth 629, 634 

v. Fulton Co. 320 

r. New York & Erie R. R. Co. 842 

v. Nichols S. & Co. 26 

v. Putnam 417 

v. Supervisors 324, 706 

Marshall v. Baltimore & Ohio R. R. 

Co. 198 

v. Donovon 232, 423 

v. Grimes 256 867 

v. Gunter 630, 633 

v. Harwood 193 
v. Kerns 926, 935, 937, 940 

v. Silliman 339, 543 

v. Vicksburg 691 
Marshall Co. Court v. Galloway Co. 

Court 268 

Marshalltown v. Blum 693 

Marten v. Van Schaick 644 

Martens v. People 288 

Martin, Ex parte 687 

v. Barbour 751 

v. Bigelow 52 

v. Broach 209 

v. Brooklyn 357 

v. Dix 237, 267, 721 

v. Elliot 424, 568 

v. Hughes 408 

v. Hunter's Lessee 26, 30, 45, 103 

v. Ingham 131, 162 

v. Mott 74 

v. State 851 

v. Stovall 44 

v. Tyler 318 

v. Waddell 33 

v. Wade 924 

Martin's Appeal 149 

Marx, Ex parte 456 

v. Hanthorn 111, 526, 750 

Mary Smith's Case 444 

Mason, Matter of 496 

v. Bridge Co. 664 

v. Cumberland 297 

v. Haile 407, 410 

v. Harper's Ferry B. Co. 812, 822 

v. Kennebec, &c. R. R. Co. 819, 826 

v. Lancaster 711 

v. Mason 644 

v. McLeod 13 

v. Messenger 582 

i>. Missouri 16, 32 

v. Spencer 786 

v. State 893 

v. Wait 128, 148 

Massachusetts v. West U. Tel. Co. 691 

Massuere v. Dickens 606 



Ixxii 



TABLE OF CASES. 



Page 

Masten v. Olcutt 82 

Masteron v. Mt. Vernon 362 

Mather v. Chapman 633, 643 

v. Hodd 687 

v. Ottawa 317, 700 

Mathews, Ex parte 86 

v. Beach 638 

v. Zane 223 

Mato, Ex parte 144 

Matre v. Sankey 45 

Matter of Election Law 923 

Matthews v. Board of Education 180 

v. Densmore 688 

v. Murphy 245, 284 

v. St. Louis & S. F. Ry. Co. 150, 836, 

841 

Mattox v. U. S. 451 

Mauch Chunk v. McGee 207 

Maul v. State 376 

Mauldin v. Greenville (33 S. C.) 696 

t7. Greenville (42 S. C.) 717 

17. Greenville (53 S. C.) 717 

Maull v. Vaughn 408 

Maulsby v. Reifsnider 633 

Mauran v. Smith 162 

Maurer v. People 452 

Maurice v. Worden 631 

Maxey v. Loyal 408 

v. Williamson Co. 322 

17. Wise 537 

Maxmilian v. New York 357 

Maxwell v. Com'rs Fulton Co. 591 

t7. Dow 14, 38, 47, 454, 505 

v. Goetchius 149, 153, 545 

v. Jonesboro 285 

v. Newbold 30 

7. Reed 252 

v. Stewart 43 

May v. City of Boston 826 

t7. Fletcher 614 

t7. Holdridge 641 

v. Logan Co. 524 

t7. Rice 188 

t7. Tenney 32 

May & Co. v. New Orleans 687 

May berry v. Kelly _ 231 

Mayer, Ex parte 547 

17. Schleichter 607 

Maynard v. Bd. of Canvassers 922, 932 

v. Hill 64, 156, 403 

Maynes v. Moore 406 

Mayo v. Freeland 935 

v. Sample 620 

v. Springfield 304 

v. Washington 318 

v. Wilson 62 

Mayor, Matter of (99 N. Y.) 312 

v. Cooper 29 

v. Morgan 190 

Mayor, &c., Matter of 741 

v. Horn 137, 138 

v. Maberry 860 

v. The Queen 128, 174, 832 

. Yuille 283, 284, 286, 287, 888 

Mayor of Annapolis v. State 206 

Mayor of Athens v. Georgia R. R. Co. 291 



Page 

Mayor of Baltimore v. Hussey 694 

v. State 234 

Mayor of Cartersville v. Lanhara 860 
Mayor of City of New York, Re 806 

Mayor of Florence, Ex parte 89 

Mayor of Hudson v. Thorne 283, 288 
Mayor of Hull v. Horner 276, 277 

Mayor of Huntsville v. Phelps 284 

Mayor of London's Case 490 

Mayor of Lyme v. Turner 356, 361 

Mayor of Macon v. Macon & W. R. 

R. Co. 272 

Mayor of Memphis v. Winfield 281, 288 

Mayor of Mobile v. Allaire 279, 280 

v. Dargan 49, 703, 717 

v. Kimball 688, 856, 858 

v. Rouse 280 

Mayor of New York v. Furze 356 

v. Hyatt 280 

v. Lord 878 

v. Nichols 279, 281, 291 

v. Second Ave. R. R. Co. 283 

Mayor of Savannah v. Hartridge 271 

v. Spears 304 

v. State 204, 247 

Mayor of Wetumpka v. Winter 167 

Mayrant v. Richardson 628 

Mays v. Cincinnati 266, 279, 283, 745 

v. Commonwealth 458 

Maysville & B. S. Ry. Co. v. Ingraham 815 

Maysville v. Wood 664 

McAdoo v. Benbow 91 

McAfee v. Covington 408 

McAfee's Heirs v. Kennedy 773 

McAlister v. Clark 286 

McAllister v. Detroit Free Press Co. 644 

v. Hoffman 924 

McAndrews v. Hamilton County ' 300 

McArthur v. Goddin 615 

McAuley v. Boston 363 

McAunich v. Mississippi, &c. R. R. 

Co. 183, 209 

McBean v. Chandler 711, 730 

v. Fresno 318 

McBee v. Fulton 637, 647, 648 

McBrayer v. Hill 607 

McBride v. Chicago 717 

McCabe, Ex parte 425 

McCafferty v. Guyer 99, 372 

McCain v. Des Moines 31 

McCall v. California 179, 690 

v. Peachy 575 

McCampbell v. State 459 

McCann v. Com. 849 

v. Eddy 876 

v. Sierra Co. 815 

McCardle, Ex parte 138, 258, 644, 548 

McCarroll v. Weeks 506 

McCarthy, Matter of 481 

v. Boston 305 

v. Commonwealth 183 

v. Froelke 894 

v. Hoffman 540 

McCarver, Ex parte 289 

McCaslin v. State 209 

McCauley v. Brooks 79, 411 



TABLE OF CASES. 



Ixxiii 



McCauley v. Hargroves 42, 80 
McClain, Ex parte 827 
v. People 817 
McClary v. Lowell 859 
McClatchy v. Superior Court of Sac- 
ramento Co. 569 
McClaughry v. Wetmore 631 
McClellan v. Chipman 27 
McClinch v. Sturgis 118, 194 
McCloskey v. Kreling 878 
McCloud v. Shelby 353 
McClure v. Oxford 223, 319, 320 
v. Redwing 302 
McOluskey v. Cromwell 89 
McCollum, Ex parte 253 
McComas v. Krug 99 
McComb v. Akron 296, 784 
v. Bell 725 
v. Gilkey 146, 147 
McConkle v. Binns 656 
McCool v. Smith 217 
McCormick v. Fitch 707 
v. Rusch 414, 515 
MeCormick's Est. v. Harrisburg 730 
McCoull v. Manchester 362 
McCoy v. Grandy 653 
v. Huffman 485 
v. Michew 531 
McCracken v. Hay ward 404, 406, 409, 412 
McCracken Co. v. Merc. Trust Co. 522 
McCready r. Sexton 527, 751 
v. Virginia 37 
McCrowell v. Bristol 293 
McCuen v. Ludlum 605 
McCulley v. State 
McCulloch v. Maryland 25, 43, 98, 679, 

681, 682 

v. State 116, 193, 195, 200, 246, 258 

McCullough v. Brown 848 

v. Virginia 31, 36, 324, 403 

McCully v. Tracey 269 

McCutchen v. Windsor 262 

McDade v. Chester 301 

McDaniel v. Correll 137, 151, 546 

McDermott v. Evg. Journal Co. 631 

McDermott's Appeal 579 

McDevitt v. Peoples N. G. Co. 804 

v. St. Paul 301 

McDonald v. Hinton 900 

v. Massachusetts 375 

v. Mayor, &c. 311 

v. People 375 

v. Redwing 757, 878 

v. Schell 691 

v. State 473, 844 

v. Woodruff 644 

McDonogh v. Millaudon 31 

McDuffee v. Sinnott 622 

McEldowney v. Wyatt 622 

McElmoyle v. Cohen 42 

McElrath v. United States 47 

McElroy v. Albany 305 

McElvain v. Mudd 685 

McElvaine v. Brush 46, 473 

McFadden v. Commonwealth 408 

McFarland v. Butler 411, 518 



Page 

McFarland v. State 467 

McGahey v. Virginia 31, 403 

McGatrick r. Wason 675 

McGear v. Woodruff 454 

McGee v. Mathis 395 

v. San Jose 387 

McGeehan v. State Treasurer 530 

McGehee v. Mathis 717, 736, 868 

v. McKenzie 640 

McGhee v. State 215 

McGhee Irr. Ditch Co. v. Hudson 766 

McGraw v. Dist. of Columbia 302 

v. Marion 693, 887 

McGregor v. Cove 848 

McGiffert v. McGiffert 578, 579, 580 

McGinity v. New York 358 

McGinnis v. State 95 

v. Watson 661, 672 

McGinty v. Carter 691 

McGlinchy v. Barrows 430 

McGoon v. Scales 683 

McGowan v. State 468 

McGruder v. State 162, 217 

McGuffee v. State 461, 463 

McGuire v. Parker 693 

v. State 375 

McHaney v. Trustees of Schools 529 

McHenry v. Alford 706 

v. Downer 682 

Mclnturf v. State 381 

Mclntyre v. McBean 610 

McKane v. Durston 22, 38 

McKay v. Gordon 42 

McKean, Ex parte 40, 492 

McKee v. Cheney 198 

v. McKee 265, 860 

v. People 470 

v. Wilcox 95 

McKeen v. Delancy 33 

McKenna v. Edmundstone 217 

v. St. Louis 301 

McKenzie v. Moore 218 

v. State 437 

McKibbin v. Fort Smith 286 

McKim v. Odom 266 

McKinney v. Carroll 30 

v. O'Connor 921, 929 

v. Salem 400 

v. Springer 621 

McKinnon v. Cotner 195 

v. People 914 

McKinsev v. Squires 690 

McKune'r. Weller 114, 908 

McLane v. Bonn 376, 644 

McLaughlin, Ex parte 469 

v. Corry 363 

v. Cowley 630, 632 

v. South Bend 689 

v. State 382 

McLaurine v. Monroe 42 

M'Lean v. Hugarin 81 

v. State 898 

McLean Co. v. Humphrey 423 

McLeod's Case 493 

McLimans v. Lancaster 644 

McLure v. Melton 405 



Ixxiv 



TABLE OF CASES. 



McMahon v. Savannah 906 

v. St. Louis, &c. Ry. Co. 811 

McManus v. Carmichael 861 

v. McDonough 590 

v. O'Sullivan 30 

v. State 883 

Me Masters v. Commonwealth 728 

McMatli v. State 464 

McMerty v. Morrison 522 

McMillan v. Birch 619, 632 

v. Boyles 542 

v. Lee County 270 

v. McNeill 45, 417 

McMillen v. Anderson 20, 505 

McMinn v. Whelan 750 

McMullen v. Hodge 109 

McNaughton Co. v. McGirl 687 

McNealy, Ex parte 459 

McNeer v. McNeer 512 

McNeill, In re 189 

v. Somers 895 

McNichol i7. U. S., &c. Agency 136 

McNiel, Ex parte 688 

v. Commonwealth 220 



McNulty v. California 
McPherson v. Blacker 

v. Chebanse 

v. Foster 

v. Leonard 



22, 31, 456, 505 

17, 932 

279, 883 

271, 320, 324 

118 



McQuigan v. Delaware L. & W. Ry. 

Co. 424 

McQuillen v. Hatton 766, 775 

McRae v. Americus 280 

v. Grand Rapids L. & D. Ry. 

Co. 454 

McReynolds v. Smallhouse 207, 864, 865 
McSorley's Liquors 591 

McSpedon v. New York 311 

McTwiggan v. Hunter 712, 722, 748 

McVeigh v. United States 681, 582 

Meacham v. Dow 924 

v. Fitchburg R. R. Co. 824 

Mead v. Acton 310, 333 

v. County Treasurer 897 

v. Derby 363 

v. Larkin 581 

v. McGraw 87 

v. Walker 590 

Meade v. Beale 34 

v. Deputy Marshal 681 

Meadowcraft v. People 526 

Meagher v. Storey Co. 259 

Mears v. Commissioners of Wilming- 
ton 356 
Mechanics' & Farmers' Bank v. 

Smith 291 

Mechanics' & Traders' Bank v. De- 
bolt 176, 385 
v. Thomas 395 
Mechanics', &c. Bank Appeal 406 
Mechanics' Bank v. Smith 104 
Meddock v. Williams 538 
Medford v. Learned 628, 529 
Meeker ?. Van Rensselaer 851, 878 
Meguire v. Corwin 198, 924 
Meighen v. Strong 640 



Page 

Meister v. People 483 

Vlelick v. Washington 284 

Melizet's Appeal 156, 514 

Mellen v. Western R. R. Corp. 784 

Melvin v. Weiant 605 

Memphis v. Bolton 825 

v. Fisher 660 

v. Water Co. 562 

v. Winfield 281, 288 

Memphis, &c. R. R. Co. v. Payne 817 
Memphis & C. Ry. Co. v. Birming- 
ham S. & T. Ry. Co. 807 
Memphis & L. R. R. R. Co. v. R. R, 

Com'rs 397 

Memphis City Bank v. Tennessee 397 
Memphis Freight Co v. Memphis 764 
Memphis Gas Light Co. v. Shelby 

Co. 396 

Menard Co. r. Kincaid 516 

Menasha v. Hazard 321 

Mendel v. Wheeling 301 

Mendota v. Thompson 363 

Menges v. Wertman 631, 533, 536 

Menken v. Atlanta 281, 850 

Menserdorff v. Dwyer 676 

Mercantile Bank v. Tennessee 397 

Mercer . Me Williams 813 

Merchants' Bank v. Bergen Co. 323 

v. Cook 351 

Merchants' Bank of Danville v. Bal- 
lon 416, 516 
Merchants' & M. Nat'l Bank v. Penn- 
sylvania 34, 682, 712 
Merchant, Union Barb-wire Co. v. 

C. R. I. & P. Ry. Co. 816 

Meredith v. Christy 895 

v. Ladd 198 

Merivale v. Carson 645 

Meriwether v. Garrett 267, 268, 345 

Merrick v. Amherst 313, 337, 704 

v. Giddings 192 

v. Van Santvoord 178 

Merrifield v. Worcester 303, 304, 362 

Merrill v. Eastern R. R. 844 

v. Humphrey 711 

v. Monticello 319, 322 

v. Plainfield 309, 311 

v. Sherburne 134, 137, 611 

Merritt v. Cameron 105 

v. Farris 743 

Mershon v State 449 

Merwin v. Ballard 629 

Merz v. Missouri Pac. Ry. Co. 840 

Meshmeier v. State 163, 173, 248, 257, 

849, 850 

Messenger r. Mason 30 

Mestayer v. Corrige 283 

Metcalf v. Gilmore 83 

Methodist Church v. Ellis 740 

w. Wood 661 

Meth. Ep. Ch. v. Wyandotte 304, 783 
Metropolitan Board v. Barrie 400, 845, 

846 

v. Heister 286, 853, 854, 883 

Metropolitan Gas Light Co., Matter 
of 209, 212 



TABLE OF CASES. 



Ixxv 



Page 

Metropolitan Nat'l Bk. v. Claggett 29 
Metropolitan Police Board v. Wayne 

Co. Auditors 334 

Metropolitan Tel., &c. Co. v. Colwell 

L. Co. 787 

Metropolitan W. S. El. Ry. v. John- 
son 827 
Metzger, Matter of 495, 496 
Mewherter v. Price '209, 213 
Meyer v. Berlandi 133, 249, 508 
v. Muscatine 319 
v. Richmond 21 
v. San Diego 592 
Meyers v. Baker 886 
v. Chicago, R. I. & P. Co. 285 
Miami Coal Co. o. Wigton 762 
Michales v. Hine 589 
Michigan State Bank v. Hastings 392 
Michigan Sugar Co. v. Aud. Gen'l 697 
Michigan Telephone Co. v. St. 

Joseph 130, 132, 392 

Middlebrook v. State 453 

Middlebrooks v. Ins. Co. 41 

Middleport v. Ins. Co. 212 

Middleton v. Lowe 162 

v. Middleton 240 

v. St. Augustine 319, 696 

Middletown, Matter of 202 

Re 250 

Mifflin v. Railroad Co. 792 

Mikesell v. Durkee 799 

Milam Co. v. Batcman 344 

Milan & R. P. R. Co. v. Husted 395 

Milan M. & M. Co. v. Gorton 180 

Milburn, Ex parte 495 

v. Cedar Rapids, &e. R. R. Co. 797 

Miles v. Albany 307 

v. Caldwell 33 

. State 381 

v. Worcester 304 

Milhau v. Sharp 272, 291, 299, 306, 789 

Millard v. Board of Education 664 

v. Webster City 296 

Millaudon v. Gallagher 750 

Milledgeville v. Cooley 363 

Miller, In re 41, 375, 498 

v. Ammon 850 

v. Birch 884 

v. Clark 900 

v. Commonwealth 456, 487 

v. Craig 880, 883 

v. Dunn 88 

v. English 661 

v. Gable 660 

v. Graham 543, 546 

v. Grandy 333, 701 

v. G. B. W. & St. P. Ry. Co. 803 

v. Hixson 529 

r. Hurford 220 

v. Johnson 61 

v. Jones 213 

v. Max 121 

v. Miller 513 

v. New York & Erie R. R. Co. 838, 

839 
v. Nicholls 30 



Page 

Miller v. Parish 607 

v. People 444 

v. Rucker 927 

v. State (3 Ohio) 116, 193, 195, 200, 

214, 231 

v. State (8 Ind.) 469 

v. State (149 Ind.) 454, 472, 473, 589 

v. State (15 Wall.) 394 

v. St. Paul 301 

v. Texas 46, 879 

o. Troost 772 

Miller's Case 652 

Miller's Executor v. Miller 583 

Miller's Exec'rs v. Swann 32, 834 

Millett v. People 659 

Millholland v. Bryant 911 

Milligan, Ex parte 436, 454 

Milligan's Appeal 922 

Milliken v. City Council 286 

v. Pratt ' 834 

Mills, Matter of 481 

r. Brooklyn 302, 356, 361 

v. Charleton 209, 210, 265, 338, 542, 

700 

v. Duryea 43 

v. Gleason 271, 272, 750 

v. Jefferson 225 

v. Missouri 291 

v. St. Clair Co. 567 

v. United States 782 

v. Williams 266, 389, 392, 393 

Milne v. Davidson 883 

Milner v. Pensacola 267 

Milward v. Thatcher 894 

Milwaukee v. Gross 286, 854 

Milwaukee County v. Isenring 194 

Milwaukee Gaslight Co. v. Schooner 

Gamecock 54 

Milwaukee Ind. School v. Super- 
visors 423, 589 
Milwaukee Town v. Milwaukee City 268 
Miner v. Detroit Post & Tribune 629, 650 
v. Markham 192 
Miners' Bank v. Iowa 54 
v. United States 149, 392 
Minneapolis v. Tanney 697 
v. Wilkin 648, 594 
Minneapolis & N. EL Co. v. Traill 

Co. 508 

Minneapolis & St. L. Ry. Co. v. 

Beckwith 18, 832 

v. Emmons 841 

v. Herrick 18 

. Minn. W. R. Co. 758, 806, 807 
Minneapolis Gas Light Co. v. Minne- 
apolis 294 
Minnesota v. Barber 854, 855 
v. Young 144 
Minnetonka Lake Improvement, Re 782 
Minor v. Board of Education 665 
v. Happersett 18, 66, 57, 104, 568, 

901 

Minot v. West Roxbury 198 

o. Winthrop 708 

Misch v. Russell 926 

Miskimins, Ex parte 442 



Ixxvi 



TABLE OF CASES. 



Page 

Miss., &c. Boom Co. v. Prince 212 

Miss. & R. R. Boom Co. v. Patterson 827 

Mississippi Mills v. Cook 120, 706 

Mississippi R. R. Co. v. McDonald 392 

Mississippi Society v. Musgrove 392 

Missouri v. Andriano 30 

v. Lewis 14, 19, 555 

v. Murphy 207 

Missouri K. & T. Ry. Co. v. Haber 854 

v. McCann & Swizer 34, 852 

v. Simonson 21 

Missouri K. & T. Trust Co. v. Krum- 

seig 833, 836 

Missouri Pac. Ry. Co. v. Finley 881 

v. Fitzgerald 27 

v. Houseman 818 

v. Humes 18, 528, 841 

v. Mackey 18, 20, 556 

v. Nebraska Bd. of T. 22, 125, 774, 

804, 876 

v. Porter 827 

v. Richmond 620 

v. Sherwood 852, 853 

Mitchell v. Burlington 319 

v. Clark 23, 383 

v. Deeds 631, 635 

v. Harmony 764 

v. Illinois, &c. Coal Co. 121, 760 

v. Negaunee 696 

v. Rome 296 

v. State 470 

v. St. John 589 

v. Tibbetts 177 

v. Williams 881 

Mitchell's Case 478 

Mithoffv. Carrollton 769 

Moberly v. Preston 607 

Mobile v. Allaire 279, 280 

v. Dargan 49, 703, 717 

v. Kimball 688, 856, 858 

v. Rouse 280 

v. Watson 268, 415 

Mobile & Ohio R. R. Co. v. Dis- 

mukes 876 

v. Postal T. C. Co. 828 

v. State 218, 231, 246, 251 

v. Tennessee 31, 396 

Mobile Trans. Co. v. Mobile 517 

Moers v. City of Reading 104, 167 

Moffatt v. Hardin 478 

Mohan v. Jackson 895 

Mohawk & Hudson R. R. Co., Matter 

of 114 

Mohawk Bridge Co. v. Utica & Sche- 

nectady R. R. Co. 667 

Mohr, In re 40 

Mok v. Detroit, &c. Association 216 

Moletor v. Sinnen 425 

Monday v. Hah way 130 

Monette v. Guilbert 508 

Money v. Leach 428 

Monford v. Barney 691 

Monk v. Corbin 623 

Monmouth v. Leeds 111 

Monongahela Navigation Co. v. Coons 781, 

786 



Page 
Monongabela Navigation Co. r. 

United States 756, 778, 817, 827 
Monopolies, Case of 401, 662 

Monroe v. Collins 99, 249, 564, 906, 908 

927 

v. Hoffman 286, 878 

Mon Suck v. Sears 850 

Montana Catholic Mission v. L. & C. 

County 740 

Montana Centr. Ry. Co. v. Helena, 

&c. Co. 807 

Montana Co. v. St. Louis Mining & 

M. Co. 424, 568 

Montclair v. New York, &c. Ry. Co. 839 
v. Ramsdell 206 

Montee v. Commonwealth 464 

Montery Co. v. Gushing 765 

Montgomery v. Deeley 605 

v. Hobson 638 

v. Kasson 386, 402 

o. Meredith 631 

v. Montgomery Water Works 311 
v. Santa Ana & W. Ry. Co. 803 

v. State 464, 655 

v. Townsend 296, 811, 812 

v. Waseni 749 

Montgomery B. B. Wks. v. Gaston 194 
Montgomery Co. v. Elston 683 

Montgomery Co. Fiscal Ct. v. Trimble 202 
Monticello v. Banks 730 

Monticello Bank v. Coffin's Grove 262 
Monticello D. Co. v. Mayor of Balti- 
more 231 
Montjoy v. Pillow 649, 567 
Montpelier v. East Montpelier 267, 268, 

345, 391 

Montpelier Academy v. George 267, 268 

Montross v. State ' 129, 166, 468 

Mooar v. Harvey 905 

Moodalay v. East India Co. 360 

Moody v. State 186, 193, 194, 218 

v. Trimble 900 

Moog v. Randolph 194 

Moon v. Atlanta 812 

v. Durden 97 

v. Stevens 692 

Moor v. Luce 621 

Moore, Ex parte 212 

Matter of 481 

v. Atlanta 296 

v. Cass 647 

v. Detroit Locomotive Works 676 

v. Greenhow 406 

w. Holland 407 

r. Houston 237 

r. Indiana 363, 400 

v. Irby 611 

17. Kent 614 

t7. Kessler 935 

v. Maxwell 146 

v. Meagher 608 

v. Missouri 472 

t7. Monroe 666 

17. Moore 685 

r. Napier 251 

v. Nat'l Com. K. & L. of S. 507 



TABLE OF CASES. 



Ixxvii 



Moore v. New Orleans 

v. People 

v. Quirk 

. Railway Co. 

v. Sanborne 

v. Sanford 

v. Smaw 

v. State 

v. Stephenson 

v. Strickling 
Moores v. Nat. Bank 
Moose v. Carson 



Page 

250 

46, 281 

684, 685 

760, 761 

861, 862 

775, 777 

763 

374, 406, 438, 467 

657 

389 

34 

298 



Moran v. Commissioners of Miami 

Co. 321 

v. New Orleans 691 

v. Pullman Pal. Car Co. 305 

v. Ross 777 

v. Sturges 25, 27 

Moreau v. Detchamendy 36 

Morehead v. State 445 

Morehouse Parish i;. Brigham 710 

Morey v. Brown 881 

v. New fane 355, 357 

Morford v. Unger 166, 206, 209, 222, 546 

697, 704, 720 

Morgan, Re 66, 570, 891 

v. Beloit 345 

v. Bufflngton 161 

v. Cree 176 

v. Des Moines, &c. Ry. Co. 797 

v. Elizabeth 711 

v. Gloucester 908 

. King 52, 808, 861, 862, 863 

v. Livingston 606 

v. Orange 283 

v. Plumb 81 

v. Potter 44 

v. Quackenbush 935, 939, 940 

v. Smith 176 

v. State 452 

Morgan's S. S. Co. v. Louisiana 688 

Morley v. L. S. & M. S. Ry. Co. 

(95 N. Y.) 387 

v. L. S. & M. S. Ry. Co. (146 U. S.) 32, 

387 

Morrell v. Dickey 584 

v. Fickle 256 

Morril v. Haines 930 

Morrill v. State 709, 888 

Morris v. Bark ley 607 

v. Bd. of Canvassers 900 

v. Carter 463 

v. Claimants, The 184 

v. Columbus 880 

v. Council Bluffs 304 

v. People 237, 253 

v. Powell 99, 908 

v. Royal Arch Masons 740 

v. State 267, 391, 470, 542, 865 

v. Stout 183 

v. Vanlaningham 929 

Morris & Essex R. R. Co. v. Newark 791 

Morris Canal Banking Co. v. Fisher 323 

Morrison v. M'Donald 453 

v. Rice 514 

v. Springer 237, 903 



Morrison v. State 
Morrissey v. People 
Morrow v. Wood 
Morrow Co. v. Hendryx 
Morse ?;. Boston 

v. Goold 
Morton, Matter of 

v. Macon 

v. New York 

v. Sharkey 

v. Sims 

v. Skinner 

v. The Controller 
Mortun r. Valentine 
Mose v. State 
Moseley v. State 
Moser v. White 



Page 
449 
177 

263, 486 
268 
363 

85, 406, 408 
431 

282, 290 
574 

521, 523 

829 

39 

207, 210 
409 
452 
469 
138 



Moses v. Pittsburg, Fort Wayne, & 

C. R. R. Co. 797 

v. Sanford 822 

v. State 180 

Moses Taylor, The, v. Hammons 45 

Mosier v. "Hilton 210 

Moss v. St. Louis, &c. Ry. Co. 757 

Motes v. U. S. 450 

Mott v. Comstock 606 

v. Dawson 610, 628, 649 

v. Pennsylvania R. R. Co. 176, 395 
Motz v. Detroit 251, 654 

Moulton v. Newburyport Water Co. 822 

v. Raymond 700 

v. Scarborough 306 

Mount v. Commonwealth 468 

v. Richey 185 

Mount Carmel v. Shaw 298 

v. Wabash Co. 268 

Mount Pleasant v. Beckwith 268, 345 

v. Breeze 272 

Mount Veruon v. People 740 

Mount Vernon First N. Bank v. 

Sarlls 290 

Mount Washington Road Co.'s Peti- 
tion 777, 817, 824, 825 
Mounts v. State 467, 468 
Mower v. Leicester 351, 355 

v. Watson 631, 633 

Moxley v. Ragan 252 

Moyer v. Van De Vanter 900, 906 

v. Slate Co. 95 

Moynier, Ex parte 286 

Mugler v. Kansas 11, 18, 849, 850, 883 
Muhlenbrinck v. Commissioners 283,285 
Muhlker v. N. Y. & H. R. Co. 800 

Mulcairns v. Janesville 306 

Mulhearn v. Press Pub. Co. 483 

Mulholland v. Des Moines, &c. Co. 404 
Mulinx v. Mut. Ben. L. Ins. Co. (23 

Col. 71) 228 

v. Mut. Ben. L. Ins. Co. (23 Col. 

85) 119 

Mullan v. State 196 

Muller v. So. Pac. B. Ry. Co. 826 

Mulligan v. City of Perth- Amboy 814 
Mull in v. People 455 

Mullinex v. People 464 

Mumford v. Sewall 694 



Ixxviii 



TABLE OF CASES. 



Page 

Muncie Nat. Bank v. Miller 631 

Mundt v. Sheboygan, &c. R. R. Co. 89, 

202 

Mundy v. Monroe 250, 412 

Munger v. Tonawanda R. R. Co. 809 

Municipal Full Plants, Re 696 

Municipal Suffrage to Woman 164 

Municipality v.Blanc 860 

v. Cutting 888 

v. Dunn 719 

v. Wheeler 374 

r. White 717, 733 

Munn v. Illinois 18, 46, 287, 510, 831, 871, 

874 

v. People 870 

v. Pittsburg 363 

Munson v. Hungerford 861 

Munster v. Lamb 633 

Murdock v. Ward 684 

Murphey v. Menard 208 

Murphy, Ex parte 497, 932 

In re 89, 376 

v. Chicago 296, 783 

v. Commonwealth 376 

v. Commonwealth 468 

v. Curry 900, 926 

v. Directors 263 

v. Jacksonville 272, 310 

v. Lowell 302, 362 

v. Massachusetts 469 

v. People 647, 717 

r. Ramsey 64, 902, 907, 927 

v. San Luis Obisho 324, 911 

v. State 468, 470, 480 

Murray v. Bd. of Co. Com'rs 666 

v. Charleston 415 

v. Commissioners of Berkshire 790, 

795 

r. Hoboken Land Co. 681 

v. Lehman 707 

v. McCarty 37 

v. Menifee 781, 787 

v. Ramsey Co. Com'rs 184 

v. Sharp 

Murray's Lessee v. Hoboken Land Co. 602 

Murtaugh v. St. Louis 356 

Musgrove v. Vicksburg, &c. R. R. Co. 516 

Musselman v. Logansport 531 

Mutual Assurance Co. v. Watts 33 

Mut. Ben. Life Ins. Co. v. Elizabeth 631 

Mutual R. F. Life Ass'n v. Boyer 180 

Myers v. Baltimore Co. Com'rs 719 

v. Chalmers 937 

v. English 120, 237 

v. Manhattan Bank 56 

v. Park 606 

v. People 177, 246 

Mygatt v. Washburn 719 

My rick v. Hasey 86 

v. La Crosse 749 



N. 

Narregang v. Brown County 194 

Narron v. Wilmington & W. Ry. Co. 669 



Page 

Nash n. Lowry 299 

Nashville v. Althorp 289 

v. Nichol 296 

v. Ray 271, 272 

Nashville, &c. R. R. Co. v. Hodges 740 

Nashville, C. & St. L. Ry. Co. v. 

Alabama 19, 688, 844, 857 

Nashville M. & S. Turnpike Co. v. 

Davidson Co. 392 

Natchez, J. & C. R. R. Co. v. Currie 824 

National Bank v. Commonwealth 682 

v. Stevens 26 

v. United States 681 

v. Yankton 64 

National Docks & N. J. J. C. Ry. 

Co. v. State 806 

National Land & Loan Co. v. Mead 221 
National Life Ins. Co. v Mead 323, 324 
National Trust Co. v. Murphy 180 

Nations v. Johnson 581, 582 

Navasota v. Pearce 356 

Naylor v. Field 217 

N. C. Coal Co. v. G. C. Coal & Iron 

Co. 97 

Neaderhouser v. State 867 

Neasrle, In re 492 

Neal v. Delaware 18, 19, 49, 901 

v. Green 34 

v. Shinn 925 

Neass v. Mercer 409 

Nebraska v. Campbell 356 

v. Iowa 36 

Nebraska Tel. Co. v. State 844, 873 

Neeb v. Hope 628, 646 

Needham v. Thayer 683 

Neel v. State 453 

Neeley v. Henkle 41 

r. Henry 252 

Neff v. Beauchamp 679 

Nefzger v. Davenport 907 

Negley v. Farrow 628, 644, 646 

Nehasane Park Ass'n v. Lloyd 749 

Neifing v. Pontiac 210 

Neil v. State 689 

Neill . Keese 676 

Neilson v. Chicago, &c. Ry. Co. 826 

Nels v. State 464 

Nelson v. Allen 84, 653 

v. Borchenius 606 

v. Canisteo 366 

v. Cheboygan Nav. Co. 865 

v. Gorree 85 

r. Milford 307, 308 

v. Rountree 546 

i\ State 465, 869 

v. St. Martin's Parish 415 

Nesbitt v. Ind. Dist. of Riverside 820 

v. Trumbo 766 

Nesmith v. Sheldon 34 

Neumeyer v. Krakel 99, 168, 159 

Nevins v. Peoria 296 

New v. Walker 13 

New Albany & Salem R. R. Co. v. 

Maiden 841 

v. McNamara 841 

v. O'Daily 786, 797 



TABLE OF CASES. 



Ixxix 



New Albany & Salem R. R. Co. v. 

Tilton 830, 841, 844 

Newark v. Watson 881 

Newark & S. O. Co. v. Hunt 606 

Newark Savings Bank v. Forman 406 

Newbern v. McCann 289 

Newberry v. Carpenter 424 

v. Trowbridge 80, 81 

New Boston, Petition of 592 

v. Dunbarton 277 

New Brighton v. Peirsol 812 

New Brunswick v. Fitzgerald 183 

v. Williamson 217 

Newby v. Platte County 823, 824 

Newby's Adm'rs v. Blakey 621 

Newcastle, &c. R. R. Co. v. Peru & 

Indiana R. R. Co. 758 

Newcomb v. Indianapolis 158, 159 

v. Light 595 

v. Peck 42 

Newcome v. Smith 772 

New Counties, In re 199 

Newcum v. Kirtley 933, 937 

Newell v. How 606 

v. Minn., &c. Ry. Co. 802 

v. Newton 683 

v. People 89, 91 

v. Smith 773 

17. Wheeler 750 

New England Screw Co. v. Bliven 34 

New England Tr. & S. Club v. 

Mather 671 

New Era Life Ass. v. Musser 409, 838 
New Hampshire v. Louisiana 24 

New Haven v. New H. & D. Ry. Co. 298 
New Jersey v. Wilson 176, 395 

v. Yard 395 

New Jersey ex rel. Kennelly v. Jersey 

City 803 

New Jersey Zinc Co. v. Morris 

Canal, &c. Co. 775 

Newland v. Marsh 132, 237, 253, 256 

New London v. Brainard 270, 310 

Newman, Ex parte 237, 258 

v. Ashe 312 

New Orleans v. Abagnatto 347 

v. Cannon 506 

v. Cazelaer 721 

N . Clark ^309, 332, 336 

v. De Annas 30 

17. Dubarry 707 

v. Faber 887, 888 

v. Fourchy 739, 743 

v. Great South Tel. Co. 387 

v. Home Ins. Co. 707 

v. Houston 395, 400 

t7. Kaufman 710 

v. Miller 281 

v. People's Bank 739 

17. Poutz 374 

17. Savings Bank 710, 742 

t7. Southern Bank 217 

17. Stafford 887 

17. Stempel 695 

. St. Romes 114 

17. Turpin 265 



Page 

New Orleans v. Warner (175 U. S.) 386 

r. Warner (167 U. S.) 386, 695 

New Orleans, &c. R. R. Co. v. Gay 775, 

809 

17. New Orleans 346, 789 

New Orleans C. & L. R. Co. v. New 

Orleans 396 

v. Southern, &c. Tel. Co. 759, 770 
New Orleans Gas Co. v. Louisiana 

Light Co. 62, 383, 402 

New Orleans Water Works v. Lou- 
isiana Sugar Co. 30 
v. Rivers 402 
Newport v. Com. 739 
v. Horton 244, 334 
v. Newport 290 
New Providence v. Halsey 274, 322 
Newsom v. Cocke 253 
v. Earnheart 907 
17. Greenwood 516 
Newson v. Galveston 887 
Newton v. Atchison 709 
17. Belger 283 
v. Commissioners 388, 610, 548 
v. Newell 914, 916 
New York, Matter of Mayor, &c. of 717, 

741 

New York v. Barker 16 

t7. Furze 356 

v. Hyatt 280 

v. Lord 878 

7. Miln 690, 858 

17. Nichols 279, 281, 291 

v. Ryan 265 

v. Second Av. R. R. Co. 283, 295, 710 

v. Squire 860 

v. Williams 286 

New York & A. R. R. Co. v. N. Y., 

&c. R. R. Co. 807 

N. Y. & Harlaem R. R. Co. v. Kip 764, 766 

v. New York 789 

New York & L. B. R. R. Co. v. 

Drummond 807 

N. Y., L. E. & W. Ry. Co. v. Estill 32, 180 

v. Pennsylvania (153 U. S.) 384 

17. Pennsylvania (158 U. S.) 692 

N. Y. Life Ins. Co. v. Cravens 32, 34, 179, 

687 

i'. English 664 

N. Y. & N. E. Ry. Co. v. Town of 

Bristol 843 

N. Y., N. H. & H. R, Co. . New 

York 853 

v. Welsh 763 

New York & N. Tel. Co. v. Mayor 

of Bound Brook 130 

New York, &c. R. R. Co., Matter of 769, 

778, 806 

17. Commonwealth 404 

o. New York 306 

u. Van Horn 253, 840, 639 

New York Central, &c. R. R. Co. v. 

Gaslight Co. 778 

Niagara, F. & W. Ry. Co., Matter of 770, 

775 
Niagara Ins. Co. v, Cornell 573 



Ixxx 



TABLE OF CASES. 



Page 

Niccolls v. Rugg 661 

Nichol v. Nashville 167 

Nicholl v. New York & N. J. Tel. Co. 804 

Nicholls v. Barriek 900 

Nichols, Matter of 408, 560 

v. A. A. & T. Ry. Co. 803 

v. Bertram 392 

v. Bridgeport 717, 728, 761, 823, 825 

v. Duluth 296 

v. Griffin 156 

v. Guy 606 

v. Mudgett 924 

v. School Directors 663 

v. Somerset, &c. R. R. Co. 813 

Nicholson v. N. Y. & N. H. R. R. Co. 794, 

823 

Nickerson v. Boston 868 

v. Howard 486 

Nicks v. Chicago, St. P. & K. C. Ry. 

Co. 828 

Nicolay v. St. Clair 322 

Nicolls v. Ingersoll 487 

Nielson, Petitioner 496 

Nightingale, Petitioner 285 

v. Bridges 609 

Nightingale's Case 887 

Niles Water Works v. Mayor 311 

Nims v. Troy 363 

Nishimura Ekin v. United States 129, 

131 

Nix v. Caldwell 619 

Nixon v. Reid 66, 867 

Noble v. Mitchell 179 

v. Richmond 356 

Noble & W. v. Mitchell 886 

Noble v. Union Riv. Log Ry. Co. 22 

Nobles v. Georgia 32 

Noel v. Ewing 156, 514 

v. People 248, 509, 837, 849, 886 

Nolan v. State 468 

Nolin v. Franklin 886 

Nomaque v. People 452 

Nomination of Public Officers, Re 895 

Noonan v. Albany 363 

v. Orton 611 

v. State 52 

Norfolk v. Ellis 717 

v. Young 712 

Norfolk & W. Ry. Co. v. Com. 859 

v. Pendleton 397 

v. Pennsylvania 179, 690 

Norman v. Curry 210 

v. Heist 504, 512, 540 

v. Kentucky Bd. of Managers 176, 

696 

Norris, Ex parte 898 

v. Abingdon Academy 237, 392 

v. Atkinson 417 

v. Beyea 515, 529 

v. Boston 247 

v. Clymer 104, 144, 146 

v. Crocker 644 

v. Doniphan 617, 518 

v. Hall 751 

v. Harris 52 

v. Newton 494 



Norris v. Norris 

v. Vt. Central R. R. Co. 

v. Waco 

v. Wrenshall 
Norristown v. Fitzpatrick 



Page 
579 

757, 784 
722 
407 
305 



Norristown, &c. Co. v. Burket 591 

North & S. Ala. R. R. Co. v. Morris 664 
North & W. B. Ry. Co. v. Swank 826 
North Bloomfield G. M. Co. v. Keyser 592 
North Carolina v. Temple 24 

North Carolina, &c. R. R. Co. v. Car. 

Cent., &c. R. R. Co. 758 

North Carolina Coal Co. v. Coal & 

Iron Co. 97 

North Chicago C. R. Co. v. Lake View 884 
North Milwaukee, Application of, Re 164 
Northeastern Neb. Ry. Co. v. Frazier 823 
Northern Bank v. Porter Township 322 
Northern C. I. Trust v. Sears 68 

Northern Indiana R. R. Co. v. Con- 
nelly 716, 717, 729, 746 
Northern Liberties v. Gas Co. 286, 288 
v. St. John's Church 717 
Northern Pac. & M. Ry. Co. v. Forbis 826, 

827 

Northern Pac. Ry. Co. v. Colburn 28 

v. Myers 683 

Northern R. R. v. Concord R. R. 86 

North Hempstead v. Hempstead 278, 312 

North Missouri R. R. Co. v. Gott 778 

v. Lackland 778 

v. Maguire 46, 396 

Northwestern Fertilizing Co. v. Hyde 

Park 98, 836 

Northwestern Lumber Co. v. Che- 

halis County 691 

Northwestern Mfg. Co. v. Judge 882 

v. Wayne Cir. Judge 213 

Northwestern & P. H. Bk. v. State 24 
Northwestern Tel. & E. Co. v. Min- 
neapolis 837 
North Yarmouth v. Skillings 345 
Norton v. Dougherty 80 
v. Ladd 677 
v. Pettibone 633 
v. Shelby Co. 33, 897, 898 
Norwalk St. Ry. Co.'s App. 130 
Norwich v. County Commissioners 

237, 253 
Norwich Gas Co. v. Norwich City 

Gas Co. 662 

Norwood v. Baker 714, 731 

v. Cobb 42 

Nougues r. Douglass 119 

Noyes v. Butler 42 

Nugent i>. State 469 

Nunn v. State 499 

Nutting v. Massachusetts 834 



o. 

Oakland v. Carpentier 
Oakley v. Aspinwall 
Oates v. National Bank 
Oatnian v. Bond 




TABLE OF CASES. 



Ixxxi 



Page 
O'Bannon v. Louisville, &c. R. R. Co. 

624, 842 

O'Brian t\ Commonwealth 468 

O'Brien v. Baltimore 801 

v. Commonwealth 451 

v. Krenz 412, 413 

v. Philadelphia 784 

17. State 443 

r. St. Paul 784 

v. Wheelock 252 

v. Young 387 

Ocean Beach Ass. v. Brinley 87 

O'Connell v. People 437 

O'Conner v. Warner 137 

O'Connor v. Fond du Lac 159, 244, 334 

t>. Memphis 415 

v. Pittsburg 296, 783, 826 

i7. Sill 620 

O'Dea v. O'Dea 42, 580, 584 

Odiorne v. Rand 113 

Odljn v. Woodruff 750 

O'Donaghue v. McGovern 619 

O'Donnell v. Bailey 396 

O'Ferrall v. Simplot 514 

O'Ferrell v. Colby 935 

Officer v. Young 530, 560 

Ogden v. Blackledge 134, 137 

v. City of Madison 280, 454 

v. Riley 606 

t7. Saunders 104, 254, 374, 404, 405, 

406, 409, 416, 417, 525 

r. Strong 89, 92 

Ogden City v. Armstrong 745, 747, 750 

O'Grady v. Barnhisel 748 

O'Hara v. Carpenter 331 

v. Stack 660 

O'Hare v. Chicago M. & N. Ry. Co. 777 

Ohio v. Thomas 849 

Ohio & Lexington R. R. Co. v. Ap- 

plegate 800 

Ohio & M. R. R. Co. v. Lackey 150, 

528, 842 

v. McClelland 399, 830, 843, 844 

v. Taber 848 

Ohio 0. Co. v. Indiana 21, 880 

Ohio, &c. R. R. Co. r. Ridge 316 

Ohio Life Ins. & Trust Co. v. Debolt 

176, 395 

O'Kane v. Treat 183, 725, 743, 748 

O'Kelly v. Athens Mauuf. Co. 517 

v. Williams 514 

Olcott v. Supervisors 35 

Old Colony Ry. Co. v. Framingham 

Water Co. 814 

Oldham, In re 453 

Oldknow i7. Wainwright 893, 931 

P'Leary, Ex parte 883 

v. Cook Co. 210 

. Mankato 363 

Oleson 17. Green Bay, &c. R. R. Co. 

175, 217, 253 

Olive v. Ingram 895 

v. State 863 

Oliver, In re 171 

i7. McClure 138, 406 

v. Steiglitz 178 



Oliver v. Union, &c. R. R. Co. 
v. Washington Mills 



Page 
817 

674, 6U3, 
694, 706 

v. Worcester 3o'U 

Oliver Lee & Co.'s Bank, Matter of (52, 

69, 97 

Olmstead v. Camp 772, 775, 777 

v. Prop'rs Norris Aq. 769, 778 

Olmsted v. Miller 608 

Olney v. Harvey 267 

v. Wharf 811 

Olson v. Phillips 751 

Olympia v. Mann 290 

Omaha y. Olmstead 363 

v. Shaller 824 

Omaha Bell Ry. Co. v. McDermott 827 

Omaha & R. V. R. R. Co. v. Standin 811, 

812 
Omaha Horse Ry. Co. v. Cable, &c. 

Co. 812 

Omaha So. Ry. v. Todd 827 

Omaha V. R.R. Co. v. Rogers 797 

O'Maley v. Freeport 286 

O'Nail v. Craig 252 

O'Neil v. Am. F. Ins. Co. 1(54 

y. Vermont 46, 471, 474, 848 

Onslow v. Home 624 

Opel v. Shoup 24 

Opinions of Justices (30 Conn.) 903 

(23 Fla.) 72 

(79 Ky.) 73 

(7 Mass.) 908 

(15 Mass.) 908 

(150 Mass.) 696 

(155 Mass.) 696 

(165 Mass.) 896 

(166 Mass.) 158, 159 

(175 Mass.) 696 

(18 Pick.) 58 

(1 Met.) 177, 905 

(6 Cush.) 60 

(99 Mass.) 219 

(115 Mass.) 896 

(117 Mass.) ( 99,388,937 

(124 Mass.) 902 

(138 Mass.) 158 

(148 Mass.) 72 

(16 Me.) 156 

(18 Me.) 115, 119 

(38 Me.) 917, 918, 932 

(45 Me.) 911 

(52 Me.) 330 

(58 Me.) 243, 700, 701 

(62 Me.) 901 

(64 Me.) 917, 935 

(49 Mo.) 73, 76 

(55 Mo.) 167 

(4 N. H.) 144 

(41 N. H.) 458, 690 

(44 N. H.) 903 

(45 N. H.) 219, 903 

(52 N. H.) 194 

(53 N. H.) 935 

(56 N. H.) 189 

(58 N. H.) 936 

(63 N. H.) 184 



Ixxxii 



TABLE OF CASES. 



Page 

Opinions of Justices (3 R. I.) 137, 138 

(19 R. I.) 910 

(37 Vt.) 903 

Orange, &c. R. R. Co. v. Alexandria 741 

Ordineal v. Barry 198 

Oregon v. Jennings 274, 322 

Oregon & C. R. Co. v. Jackson 

County 693 

v. Portland 572 
Oregon Ry. & Nav. Co. v. Oregon, 

&c. Co. 761 

Oregon Ry. Co. v. Portland 807 

O'Keiley v. Kankakee Co. 735 

O'Reilley v. Kingston 730 

Oren v. Abbott 894 

v. Pingree 327 

Orient Ins. Co. v. Daggs 20, 21, 38 

Oriental Bank v. Freeze 517, 547 

Orkney St., Re 718 

Orlando v. Pragg 292 

Orman v. State 478 

Ormicliund v. Barker 676 

Ormond v. Martin 553 

Ormsby v. Douglass 611 

O'Rourke v. Sioux Falls 302 

Orphan Asylum's Appeal 719, 730 

Orphan House v. Lawrence 82 

Orr v. Gilrnan 684, 708 

v. Quimby 814 

v. Skofield 606 

Orth v. City of Milwaukee 827 

Ortman v. Greenman 230 

Orton n. Noonan 539 

Ortwein v. Commonwealth 437 

Osage, &c. R. R. Co. v. Morgan Co. 324 

Osborn v. Adams Co. 700 

v. Hart 508, 765 

v. Jaines 523 

17. Mobile 690 

v. Nicholson 405, 410 

17. State . 459 

v. United States 160 

v. United States Bank 29, 682 

v. Wabash Ry. Co. 873 

Osborne v. Florida 689 

v. Humphrey 395 

v. Lindstrom 524 

Osburn v. Staley 193, 194, 231, 254 

Oscanyan v. Arms Company 198 

Osgood v. Jones 936 

Oskaloosa Water Co. v. Bd. of 

Equalization 720 

Otis v. Oregon S. S. Co. 30 

Otis & G. v. Parker 673 

Otken i7. Lamkin 262 

Otoe Co. 17. Baldwin 210 

Ottawa i. Carey 322 

v. Nat. Bank 322 

v. People 209 

t7. Spencer 861 

Ottawa, O. C. & C. G. Ry. Co. v. 

Larsen 828 

Ottawa, &c. R. R. Co. v. Larson 797 

Ottumwa v. Schwab 885 

v. Zekind 291 



Ould v. Richmond 



266, 709, 712, 71J 



Page 

Our House v. State 849, 850 

Over 17. Hildebrand 619 

v. Schiffling 611 

Overby v. Gordon 44 

Overstreet v. Brown 675 

Oviatt v. Pond 849, 850 

Owen v. Jordan 585 

17. State 499 

Owens v. Henry 22 

v. State 462, 911, 941 

Owensboro v. Com. 740 

v. Hickman 90t't 

v. Nat'l Bk., Owensboro 682 

Owensboro & N. Y. Ry. Co. v. Todd 164 
Owings v. Norwood's Lessee 25, 30 

Owners of Ground v. Albany 770 

Owners of the James Gray v. Owners 
of the John Frazer 856 



P. 

Pace v. Alabama 19 

v. Burgess 680 

Pacheco v. Beck 936 

Pacific Bridge Co. v. Kirkham 729 

Pacific Coast Ry. Co. v. Porter 825 

Pacific Coast S. S. Co. v. Board R. R. 

Com'rs 689 

Pacific Exp. Co. ?7. Seibert 689 

Pacific Ins. Co. v. Soule 680 

Pacific Junction v. Dyer 693 
Pacific Postal Telph. Cable Co. v. 

Irvine 804 

Pacific R. R. Co. v. Chrystal 823, 824 

v. Governor 194 

v. Maguire 62, 395 

Pack v. Barton 199 

Packard v. Ryder 762 

Packet Co. v. Gutlettsburg 691 

17. Keokuk 691 

17. Sickles 80 

v. St. Louis 691 

Packwood v. Kittitas County 909 

Pacquette v. Pickness 653 

Padmore v. Lawrence 630, 633 

Page, Ex parte 473 

Re 243, 678, 705, 707 

v. Allen 906 

v. Commonwealth 444 

17. Fazackerly 286, 888 

17. Fowler 81 

v. Hardin 619 

v. Kuykendall 921 

17 Mathews' Adm'r 138 

17. Mervin 607 

Paine v. Wright 34. 

Paine's Case 612 

Palairet's Appeal 404 

Palfrey v. Boston 683 

Palmer v. Commissioners of Cuya- 

hoga Co. 54, 55, 865 
17. Concord 608, 642, 648 

17. Fitts 346, 348 

17. Laberee 404 

v. Larchmont 302, 804 



TABLE OF CASES. 



Ixxxiii 



Page 

Palmer v. Lawrence 84 

v. McCormick 582 

v. Napoleon 749 

v. Smith 658 

v. State 459 

v. Stumph 717, 730, 741 

v. Way 860 

Palmer Co. v. Ferrill 824 

Palmore v. State 591 

Pana v. Bowler 274, 322, 583 

Pangborn v. Westlake 86 

v. Young 194 

Paris v. Mason 761 

?;. Norway Water Co. 720 

Parish v. Eager 521 

Parish of Bellport v. Tooker 660 

Park v. Detroit Free Press Co. 560, 650 

Park Com'rs v. Common Council of 

Detroit 65 

v. Detroit 340 

Parke v. City of Seattle 784 

Parkens' Case 475 

Parker v. Bidwell 487 

v. Commonwealth 163, 171, 173 

v. Cutler Mill-dam Co. 867 

v. Hett 897 

v. Hubbard 217 

v. Kane 33 

v. McQueen 644 

v. Metropolitan R. R. Co. 839, 867, 

875 

v. Mill-dam Co. 752 

v. Ormsby 27 

v. Orr 911 

v. Phetteplace 34 

v. Redfleld 395 

v. Savage 92, 408, 517 

v. School District 262 

v. Sexton 748 

v. Shannohouse 516 

v. State 676, 898, 931 

v. Sunbury & Erie R. R. Co. 565 

Parkersburg v. Brown 317, 322, 700 

Parkinson v. Brandenberg 223 

v. State 92, 209, 223, 225 

Parkland v. Gains 726 

Parks, Ex parte 495 

v. Boston 822 

v. Goodwin 114 

v. State (Ga.) 205 

v. State (Ind.) 564 

Parmelee v. Lawrence 30, 617, 533, 537 

v. Thompson 139 

Parmiter . Coupland 656 

Parrish v. Commonwealth 435 

Parroti's Chinese Case 25 

Parsons v. Bangor 903 

v. Casey 407 

v. Clark 752 

v. District of Columbia 711, 731 

v. Goshen 311, 312 

v. Howe 762 

v. Russell 502 

Parsons Oil Co. v. Boy 178 

Parvin v. Wimberg 900 

Pasadena r. Stimson 775, 777 



Paschal v. Perez 406 

Paschall v. Whitsett 615 

Passavant v. United States 22 

Passenger Cases 832, 858 
Patapsco Guano Co. v. Bd. of Ag. of 

N. C. 855 

Patch v. Covington 301 

Paterson v. Society, &c. 166, 266, 741 

Patten v. Florence 935 

v. People 435 
Patten Paper Co., Ltd. v. Eaukauna 

Water Power Co. 782 

Patterson, Ex parte 272, 291 

v. Barlow 74, 906 

v. Collier 592 

v. Commonwealth 832 

v. Kentucky 13 

v. Mississippi, &c. Boom Co. 770 

v. Nutter 486 

v. Philbrook 516, 631, 543 

v. State 450 

v. Wilkinson 607 

v. Winn 62 

v. Wollman 66 

Pattison v. Jones 611 

v. Yuba 89, 167 

Patton v. Coates 922 

v. Stephens 310 

Patty v. Colgan 318 

Paul, In re 213 

o. Davis 87 

v. Detroit 591, 780 

v. Hazelton 37 

v. Virginia 38, 687 

Paulsen v. Portland 22, 86, 712, 722, 729 

Pawlet v. Clark 343', 386, 391 

Pawling v. Bird's Executors 42, 579 

v. Willson 583 

Paxson v. Sweet 860 

Paxton & H. Irr. C. & L. Co. v. 

Farmers' & M. Irr. & L. Co. 768, 777 

Payne v. Kansas, &c. Ry. Co. 763 

v. Treadwell 346, 537 

Pay son v. Payson 579 

Peabody v. School Committee 190 

Peak v. Swindle 63 

Pearce v. Atwood 52, 592 

v. Olney 42 

v. Patten 522 
Pearsall v. Eaton County Supervisors 781 

v. Great N. Ry. Co. 837, 852 

v. Kenan 522 

Pearse v, Morrice 111 

Pearson v. Int. Distill. Co. 207, 850 

v. Portland 556 

v. Yewdall 20, 505 

Peart v. Meeker 754 

Pease v. Chicago 333 

v. Peck 33 

Peavey v. Robbins 927 

Peay v. Duncan 80 

v. Little Rock 730 

Peck v. Batavia 357 

v. Freeholders of Essex 592 

r. Holcombe 898 

v. Jenness 26 



Ixxxiv 



TABLE OF CASES. 



Page 

Peck v. Lock wood 291 

r. Louisville, &c. Ry. Co. 754 

v. Weddell 165, 920 

Pecot v. Police Jury 97 

Peddicord v. Baltimore, &c. R. R. Co. 791 

Pedigo v. Grimes 905 

Pedrick v. Bailey 281, 286 

Peebles v. County Commissioner 935 

Peel v. City of Atlanta 780 

Peel Splint Coal Co. v. State 570, 572 

Peerce v. Carskadon 370, 372 

' v. Kitzmiller 411 

Peers v. Board of Education 262 

Peete v. Morgan 691 

Peik v. Chicago, &c. R. R. Co. 874, 875 

Pekin v. Brereton 363, 786 

v. McMahon 302 

v. Reynolds 319 

v. Winkel 363, 786 

Pembina Mining Co. v. Pennsylvania 38 

Pemble v. Clifford 52 

Pendleton v. Russell 28 

Pendleton Co. v. Amy 320, 321 

Penhallow v. Doane's Administrator 9 

Peninsula R. R. Co. v. Howard 595 

Peninsular Lead & C. Wks. v. Union 

Oil & P. Co. 408 

Penn v. Tollison 62 

Penn Mutual Life Ins. Co. v. Austin 384 

Penn's Case 461 

Pennie v. lleis 402 

Penniman's Case 408 

Pennoyer v. McConnaughy 24 

v. Neff 20, 505, 506 

Pennsylvania Co. v. Commonwealth 738 

v. James 285 

v. McCann 525 

v. Platt 815 

Pennsylvania Hall, In re 341 

Pennsylvania R. R. Co. v. Baltimore, 

&c. R. R. Co. 392 

v. Canal Commissioners 565 

v. Commonwealth 690 

v. Duncan 392 

v. Heister 823, 825 

v. Jersey City 282, 285 

v. Lewis 840 

v. Lippincott 812 

v. Marcliant 810, 812 

v. Montgomery Co., &c. 808 

v. Miller 392, 874 

v. New York, &c. R. R. Co. 787 

v. Riblet 237, 841, 844 

Pennsylvania S. V. R. R. Co. v. 

Cleary 827 

w.Walsh 810,811,812 

Pennsylvania Tel. Co., Re 690 

Penny wit v. Foote 42 

Penrice v. Wallace 824 

Penrose v. Erie Canal Co. 406, 410 

People v. Alameda 336 

v. Albany, &c. R. R. Co. 938 

v. Albertson 65, 99, 237, 242, 364, 389 

v. Allen 106, 113, 209, 262, 468, 584 

v. Amer. Bell Tel. Co. 694 

v. Angle .. 92 



People v. Arensberg 
v. Armstrong 
v. Assessors 
v. Auditor-General 
v. Austin 
v. Baker 



Page 
882 
289 
6'.)5 

402, 647 
695 
42, 580, 584 



v. Baltimore, &c. R. R. Co. 865 

v. Bangs 898 

v. Banvard 389 

v. Barker 389, 446, 468, 478 

v. Barrett 468 

v. Batcliellor 243, 338, 340, 346, 360, 

703 

v. Bates 914, 921, 929 

v. Bellet 860 

v. Bennett 589 

v. Berkeley 893 

v. Berrien Cir. Judge 569 

v. Biesecker 882 

v. Bircham 160 

v. Bissell 162 

v. Blake 99 

v. Blakely 478 

v. Blanding 222 

v. Blodgett 89, 101, 255, 903 

v. Board of Assessors 684 

v. Board of Canvassers 937 

v. Board of Commissioners 454 

v. Board of County Canvassers 900 
v. Board of Education (55 Cal.) 262 
v. Board of Education (101 III.) 557 
v. Board of Education (18 Mich.) 557 
v. Board of Education (13 Barb.) 2H2 
v. Board of Managers, etc. 472 

v. Board of Registration 936 

v. Board of Supervisors 268, 344, 738 
v. Board, &c. of Nankin 936 

v. Boston, &c. R. R. Co. 875 

v. Bowen 220 

v. Bradley 121 

v. Brady 40, 564 

v. Bragle 452 

v. Bray 568 

v. Brenahm 275, 909 

v. Bridges 879 

v. Briggs 206, 212, 247 

v. Brighton 761 

v. Brislin 209 

. Brooklyn 338, 340, 679, 716, 717, 
729, 734, 812, 813 

v. Brooklyn Board of Assessors 680 
v. Brooklyn Common Council 895 
v. Broom 931 

v. Brown 161, 893 

v. Budd 871, 893 

v. Buffalo Fish Co. 879 

v. Bull 99, 248, 388, 389 

v. Bunker 251 

v. Burns 92, 927 

v. Burt 194 

v. Butler 383 

v. Butler St. F. & I. 5t>3 

v. Butte 166 

v. Campbell 116, 200 

v. Canaday "" ! 

v. Canal Appraisers bu/ 



TABLE OF CASES. 



Ixxxv 



People v. Cannon 
v. Canty 
v. Carrigue 
v. Cassels 
v. Chase 



Page 
451 
339 
894 
496 
134 



v. Chicago 243, 326,339, 340, 346, 643, 

695 

v. Chicago Gas Trust Co. 562, 877 
v. Chicago W. D. Ry. Co. 278 

v. Chung ah Chue 452 

v. Cicott 85, 591, 912, 913, 914, 916, 

918, 920, 930, 931, 932, 938, 
941, 943, 944 

v. Cipperly 882 

v. Clapp 712 

v. Clark 223, 468 

v. Clute 932 

v. Coleman 37, 86 

v. Coler 274, 673, 877 

v. Collins 163, 172 

v. Colman 742 

v. Commissioners (59 N. Y.) 400 

v. Commissioners (4 Wall.) 683 

v. Commissioners of Highways 186, 
194, 195, 201 

v. Commissioners of Taxes 396,683 
v. Common Council of Detroit 33i, 

340, 343, 361, 364, 699, 703 
v. Compagnie 686, 832, 858 

v. Comstock 462 

r. Conley 661 

v. Coolidge 656, 561, 837, 887 

v. Cook (14 Barb, and 8 N. Y.) 110, 

914, 915, 916, 918, 921, 929, 
935, 937, 941 

v. Cook (10 Mich.) 467, 468 

v. Cook 397 

v. Corning 462 

v. County Board of Cass 319 

v. Courtney 447 

v. Cover 940 

v. Cowles 123, 276, 909 

v. Croswell 465 

v. Cullom 162 

v. Cummings 160, 472, 589 

v. Curry 222 

v. Curtis 41, 469 

v. Daniell 129 

v. Davenport 396, 740 

v. Dawell 42, 43, 579, 580 

v. Dayton 104 

v . Dean 564 

v. Denahy 209, 213 

v. D. G. H. & M. Ry. Co. 781 

v. Dettenthaler 203 

v. Devine 451 

v. Devlin 219 

v. Dill 462 

v. Doe 114, 695 

v. Donohue 39 

v. Draper 78, 128, 239, 258, 265, 266, 

831 

v. Dubois 389 

v. Dudley 209 

v. Dunn 165, 195, 454 

v. Durston 473 



Page 

People v. Eaton 804 

v. Eddy 744 

v. Elk River, &c. Ry. Co. 757 

v. Ewer 890 

v. Fairman 496 

v. Fancher 123 

v. Father Mathew Society 207 

v. Felker 474 

v. Ferguson 916 

v. Finley 437 

v. Finnigan 464 

v. Fire Ass. 707 

v. Fisher 240 



v. Flagg 
v. Flanagan 
v. Fleming 
v. Ford 
v. Freeman 
v. Freer 
v. Frisbie 



258, 336, 703, 705 
389, 435 
166, 257 
481 
158 
643 
138, 559 



v. Ft. Wayne & E. R. Ry. Co. 298 

v. Gad way 213 

v. Gallagher 241, 242, 657, 849 

v. Garbutt 437, 466 

v. Gardner 177, 450 

v. Gastro 461 

v. Gates 686 

v. Gay 38 

v. Gerke 25 

v. German, &c. Church 661 

v. Gies 101, 593 

v. Gilbert 524 

v. Gillson 888 

v. Goddard 895 

v. Goodwin 468, 469, 937 

v. Gordon 928 

v. Governor 162, 228 

v. Gray 320 
v. Green 62, 388, 814, 816, 895 

r. Hall 189, 247, 403 

v. Hanifan 894 

v. Hanrahan 203, 279, 281, 884 

v. Harding 102, 469 

v. Hardisson 469 

r. Hart well 114, 275, 909, 931 

v. Haskell 389 

v. Hatch 188, 220 

v. Hauck 213 
v. Haug 206, 473, 558, 851, 885 

v. Ha v nor 837 

t7. Hawes 340 

v. Hawley 849 

v. Hawker 376 

v. Hawkins 855 

v. Hayden 814,815 

v. Hayes 375 

v. Henderson 706 

v. Hennessy 445 

. Henshaw 183 

v. Higgins 917, 929, 930. 934, 
937, 941 

v. Kill 246, 570 

v. Milliard 035 

v. Hobson 644 

v. Hoffman 130, 894, 906 

v. Hoge 121 



Ixxxvi 



TABLE OF CASES. 



People v. Holden 905, 915, 941 

v. Holley 114 

v. Holly 310 

v. Howard 180, 205, 451 

v. Howland 389 

v. Hubbard 425 

v. Hurlbut 69, 194, 207, 209, 243, 
263, 265, 334, 346, 360 

v. Hutchinson 115 

r. Imlav 37 

v. Ingersoll 391, 404 

v. Institution, &c. 205 
r. Jackson & Michigan Plank R. 

Co. 392, 414, 838, 839 

v. Jenkins 860, 868 

v. Jenness 677 

v. Jones 450, 935, 937 

v. Kane 898 

v. Keeler 193 

v. Keenan 480 

v. Kelly 496 

v. Kelsey 265 

v. Kennedy 919 

v. Kenney 231, 247 

v. Kent County Canvassers 922 

v. Kerr 781, 794, 796, 801 

v. Kerrigan 441 

v. Kier 285 

v. Kilduff 911, 935 

v. Kipley 158, 159 

v. Kniskern 817 

v. Koeber 685 

v. Kopplekom 906, 907 

v. Lake Co. 120 
v. Lake Shore, &c. Ey. Co. 781, 839 

r. Lamb 466 

v. Lambert 445, 450 

v. Lambier 566 

v. Lawrence 115, 119, 202, 247 
257,309, 311 

v. Leonard 895 

v. Le Roy 447 

v. Levee Dist. No. 6 182 

v. Lippincott 388 

v. Liscomb 471, 474, 495 

v. Livingston 941 

v. Londoner 911, 937 

v. Loomis 915 

v. Lothrop 364 

v. Lott 581 

v. Lowrey 453 

v. Lynch 531, 545 

v. Lyng 693, 846 

v. Mahaney 189, 193, 194, 204, 206, 
216,239, 346, 746 

v. Majors 467 

v. Mallett 375 

v. Manhattan Co. 392 

v. Martin 162, 908 

v. Marx 882 

v. Matteson 914, 920, 937, 940 

v. Maynard 108, 276, 364, 926 

v. Mayor, &c. of Brooklyn 735 

v. May worm 916 

v. McAdams 663 

v. McCallum 207, 209, 216 



Page 

People v. McCann 209, 211, 437 

v. McCreery 336, 744 

v. McDonald (Cal.) 468 

v. McDonald (5 Wyo.) 375 

v. McDonnell 437 

v. McKlroy 92, 194, 199, 200 

v. McFadden 173 

v. McGowan 467, 470 

v. McKay 452 

v. McKinney 99, 389 

v. McMahon 443, 445, 446 

v. McManus 914, 920, 929 

v. McNealy 468 

v. McNulty R75 

v. McRoberts 121, 761 

v. Medical Society of Erie 292 

v. Mellen 207 

v. Mercein 497 

v. Merrill 177 

r. Mills 61 

v. Miner 468 

v. Mitchell 527, 543 

v. Molliter 932 

v. Mondon 446 

v. Monroe Co. Ct. 160, 468 

v. Moore 436 

v. Morrell 89, 128 

v. Morris 244, 268, 344, 360, 389 

v . Mortimer 382 

v. Morton 162 

v. Mosher 158, 159 

v. Most 603 

. Mulholland 287 

v. Murphy 451, 482 

v. Murray 251, 441 

v. Nally 167 

v. Nearing 770 

v. Newton 299 

v. New York 399, 754, 756, 838, 867 
v. New York Catholic Protectory 423 

v. Nichols 748 

v. Noelke 383, 449 

v. Nostrand 894 
v. N. Y. Central R. R. Co. 93, 101, 
241, 242, 257 

v. O'Brien 212, 449, 507 

v. Olmstead 382 

. O'Neil 852, 879 

v. Ormsby 453 

v. Osborne 128, 158 

v. Otis 403 

v. Parker 74 

v. Pease 912, 914, 917, 920, 928, 935, 
941, 943 

r. Peck 114 

v. Phelps 382 

v. Phillips 445, 933 

v. Phippin 37, 560, 890 

v. Phyfe 891 

r. Pine 464 

v. Pinkerton 40 

v. Pinkney 267 

v. Plank Road 531 

v. Platt 218, 386 

v. Porter 445, 674, 908 

v. Potrero, &c. R. R. Co. 55 



TABLE OF CASES. 



Ixxxvii 



Page 


Page 


People . Potter 100 


People r. Supervisors of Columbia 327, 


17. Powell 469 


528 


t7. Power 266, 336, 341, 390 


17. Supervisors of La Salle 77, 105 


Pritchard 216 


t7. Supervisors of New York 132, 135, 


. Purdy 89, 92 100, 101, 115, 219 


340 


17. Quigg 209, 217 


v. Supervisors of Onondaga 218, 


i7. Railroad Co. 591 


308 


v. Raymond 99, 389 


v. Supervisors of Orange 128, 237, 


v. Reardon 937 


242, 256 


v. Reed 868 


v. Supervisors of Saginaw 698 


v. Refining Co. 562 


v Supervisors of San Francisco 336 


v. Rensselaer, &c. R. R. Co. 232 


v. Swafford 441 


v. Rice (129 N. Y.) 932, 936 


v. Tallman 817 


7. Rice (135 N. Y.) 74 


v. Tappan 346 


v. Riordan 166 


v. Tazewell County 319 


v. Riverside 265 


r. Terry 898 


v. Roberts (148 N. Y.) 121, 158, 


v. Thacher 914 


159 


17. Thayers 465 


v. Roberts (152 N. Y.) 180 


v. Thomas 443, 450 


v. Roberts (159 N. Y.) 15, 680 


v. Thorn 450, 453 


v. Roberts (171 U. S.) 15, 691 


v. Thurber 37, 710 


v. Robertson 937, 938, 940, 941 


v. Tice 450 


v. Rochester 209, 250 


v. Tighe 881 


v. Roe 860, 868 


v. Tisdale 916, 917, 918 


v. Roper 396, 547 


r. Tompkins 114 


v. Rotter 882 


17. Townsend 720 


r. Royal 462 


w. Township Board of Salem 313, 562, 


v. Rucker 128, 228, 240 


696, 697, 704, 773 


17. Ruggles 671, 673 


v. Toynbee 242 


v. Rumsey 121 


v. Truckee Lumber Co. 879, 880 


v. Runkel 114 


v. Trustees of Schools 741 


v. Russell 13, 283, 709, 832 


v. Turner 423, 523, 527 


v. Sackett 941 


v. Tweed 266 


v. Salomon 167, 173, 259, 364, 695, 


v. Tyler 447, 448, 468 


927 


17. United States 683 


v. Sanderson 895 


v. Van Alstine 478 


v. Saxton 914, 915, 916 


v. Van Cleve 935, 937, 941 


v. Schermerhorn 110 


v. Van Eps 681 


v. Schiellein 936 


y. Van Home 438 


v. Schryver 437 


v. Van Pelt 879 


v. Seaman 914, 915, 916, 937 


v. Van Slyck 935 


v. Seymour 535 


v. Van Valkenburg 319 


v. Shaw 900 


v. Videto 465 


v. Simon 134, 508 


v. Wagner 288 


17. Simpson 452 


v. Waite 930 


v. Sligh 452 


v. Wallace 116, 183 


17. Smith 438,577,777,778,854,891 


v. Walsh 344 


v. Spicer 530 


17. Wands 206 


v. Springwells 364, 703 


v. Warden 886 


v. Squire 400, 838 


i7. Warden, &c. 67, 496, 510 


r. Stapleton 646 


v. Webb 462, 467, 470 


v. Starne 116,119,194,200 


v. Weissenbach 497 


v. State Board of Canvassers 190 


r. Welch 280 


v. Stephens 467 


v. Wemple (117 N. Y.) 689 


v. Stevens 280 


v. Wemple (138 N. Y.) 693 


v. Stewart 161, 447, 464 


r. White 469 


v. Stout 163, 170 


v. Whitlock 209 


17. Stuart 133 


v. Whitman 895 


v. Sullivan 332, 434 


v. Whyler 737 


v. Supervisors 320, 936 


v. Williams 47, 177, 894 


17. Supervisor, &c. (16 Mich.) 325 


v. Willsea 209 


v. Supervisors, &c. (20 Mich ) 543 


17. Wilson 453, 64?, 929 


r. Supervisors, &c. (16 N. Y.) 137 


v. Worden 26, 467 


v. Supervisors, &c. (94 N. Y.) 268 


17. Worthington 739 


v. Supervisors of Chenango 115, 193, 


v Wright 92, 105, 128, 215 


546,719 


v. Yates 1C2 



Ixxxviii 



TABLE OF CASES. 



Page 

People v. Yonkers 574 

v. Young 129, 365 

Peoria v. Callioun 281, 292 

v. Kiclder 717, 728, 741 

Peoria, &c. R. K. Co. v. Duggan 528, 556, 

841 

v. Peoria, &c. Co. 398 

Peoria County v. Harvey 818 

Percy, In re 481 

Perdue v. Burnett 605 

Pereless v. Watertown 524 

Perkins, Ex parts, 454 

v. Burlington 726 

v. Carraway 915 

v. Corbin 388 

v. Grey 478 

v. Heert 66 

v. Lawrence 306 

v. Lewis 325 

v. Milford , 333 

v. Mitchell 629 

v. Perkins 529 

v. St. Louis, I. M. & S. R. Co. 571 

Perley i\ Mason 417 

Perret v. New Orleans Times 650 

Perrin v. New London 318 

Perrine v. Chesapeake & Delaware 

Canal Co. 565 

v. Farr 585 

v. Serrell 80 

Perry v. Keene 238 

v. Lewis 80 

v. Man 606 

v. Reynolds 904, 927 

v. State 495 

v. Washburn 678 

v. Wheeler 661 

v. Whittaker 936 

Perry County v. Con way Co. 269 

Perry's Case 374, 677 

Persons v. Jones 82 

Peru v. French 356 

Pesterfield v. Vickers 279 

Peterman v. Huling 226 

Peters v. Fergus Falls 304 

v. Iron Mt. R. R. Co. 836, 844 

v. State 879 

Petersburg v. Cocke 719 

v. Metzker 279 

Petersilea v. Stone 898 

Peterson v. Kittredge 749 

v. Lothrop 82 

Petit v. Minnesota 21, 860 

Pettengill v. Chelsea 305 

Pettibone v. La Crosse & Milwaukee 

R. R. Co. 819 

Pettigrew v. Evansville 757 

v. Washington Co. 595 

Petty v. Tooker 661 

Pfeiffer v. Board of Education 667 

Pharis v. Dice 412 

Phelps v. Goldthwaite 920 

v. Meade 751 

v. Phelps 252 

v. Piper 900 

v. Racey 879 



Page 

Phelps v. Schroder 935, 936 

Phelps' Appeal 516 

Phenix Ins. Co. v. Burdett 38 

v. Hart 671 

v. Pollard 644 

Philadelphia v. Commonwealth 681 

v. Dickson 818 

v. Dyer 818 

v. Fox 266, 267, 360 

v. Gray's Ferry Co.'s Appeal 398 
v. Miller 712 

i;. Rule 730 

v. Scott 831, 868, 878 

v. Smith 356 

v. Tryon 736, 860 

v. Ward 778 

Philadelphia Assoc., &c. v. Wood 725 
Philadelphia Fire Ass'n v. New York 20, 

31, 687 
Philadelphia M. & S. S. R. Co., 

Petition of 764 

Philadelphia & Reading R. R. Co. v. 

Yeiser 826 

Philadelphia & Trenton R. R. Co., 

Case of 791 

Philadelphia, &c. R. R. Co. v. Bowers 874 
v. Quigley 620 

Philadelphia, &c. Ry. Co.'s Appeal 759 
Philadelphia S. S." Co. v. Pennsyl- 
vania 688 
Philips v. Bury 360 
Philleo v. Hiles 706 
Phillips v. Allen 292 
v. Berick 81 
v. Bridge Co. 902, 212 
v. Council Bluffs 296 
v. Covington, &c. Co. 209 
v. Dunkirk, &c. R. R. Co. 760 
v. Gallagher 899 
v. People 281 
v. South Park Com'rs 816 
v. Stevens Point 712 
v. Watson 766 
v. Wickham 735 
v. Wiley 607 
Phillips Academy v. Andover 736 
Phillpotts v. Blasdel 80 
Phinizy v. Augusta 362 
Phinney v. Phinney 413 
Phipps c. State 868 
v. West Md. R. R. Co. 791 
Phoenix Ins. Co. v. Allen 480 
v. Commonwealth 37 
v. Welch 165, 707 
Phoenix Fire Ass'n Co. v. Mont- 
gomery Fire Dept. 215, 696 
Phoenix F. & M. Ins. Co. v. State 

v. Tennessee 397 

Piatt v. People 929 

Pickard r. Pullman, &c. Co. 689 

Pickett v. Boyd 516, 630 

v. Russell 908, 930, 933 

v. School District 262 

Picquet, Appellant 138 

Piek v. Chicago, &c. R, R. Co. 830 

Pierce v. Bartrum 854 



TABLE OF CASES. 



Ixxxix 



Pierce v. Beck 262 

v. Boston, &c. R. R. Corp. 804 

F. Drew 770, 787 

v. Getchell 927 

v. Hubbard 589 

v. Kimball 517, 890 

v. Maryland 882 

v. New Bedford 301 

v. New Orleans Building Co. 275 

v. Pierce 259 

v. Somerset Ry. 36 

v. State 464 

v. Union Dist. 557 

Pierpont v. Crouch 214 

Pierson v. State 52 

Pike v. Megoun 104, 927 

v. Middleton 308 

v. State 707 

Pike Co. v. Barnes 167 

v. Rowland 275 

Pilkey v. Gleason 226, 275 

Pirn v. Nicholson 118, 200, 214, 231 

Pine Grove v. Talcott 711 

Pingree v. Dix 706 

v. Michigan Cent. Ry. Co. 836 

Pingrey v. Washburn 197, 838 

Pinney v. Providence L. & Inv. Co. 569 

Piper v. Chappell 284 

v. Moulton 263 

Piqua v. Zimmerlin 885 

Piqua Branch Bank v. Knoop 176, 392, 

395 

Piquet, Appellant 659 

Piscataqua Bridge v. New Hampshire 

Bridge 395,398, 549, 757 

Pitman v. Bump 522 

v. Flint 89 

Pittock v. O'Neil 461, 637, 639, 655 

Pittsburg v. Coursin 111 

v. Grier 356 

v. Scott 764, 765 

Pittsburg, &c. R. R. Co. v. Brown 883 

v. Hixon 81 

v. Reich 824 

v. S. W. Penn. R. R. Co. 842 

Pittsburg C. C. & St. Louis Ry. Co. 

v. Backus 692 

v. Board of Pub. Wks. 606 

v. Crown Point 298 

v. Long Island L. & T. Co. 28 

v. Montgomery 232 

v. State 718 

Pittsburg & S. Coal Co. v. Bates 688 

v. Louisiana 856 

Pittsburg & W. E. P. Ry. Co. v. Point 

Bridge Co. 758 

Pittsburg W. & K. Co. v. Benwood 

Iron Works 766, 767 

Pixley v. Clark . 831 

Pizano v. State 468 

Plante, Ex pctrte 495 

Planter's Bank v. Black 136 

Planter's Ins. Co. v. Tennessee 397 

v. Sharp 175, 392 

Plainer v. Best 81 

Platt Bros. & Co. v. Waterbury 782 



Page 

Platteville v. Bell 285 

Pleasant v. Kost 737 

v. State 464 

Pleasant Tp. v. Aetna Life Ins. Co. 32 

Pleasants v. Rohrer 521 

Pledger v. Hathcock 607 

Plessv v. Ferguson 16, 19, 869 

Pleufer v. State 400, 709, 710 

Plimpton v. Somerset 341, 454 

Plitt v. Cox 801, 809 

Plumb v. Christie 845 

v. Sawyer 615, 529 

Plumley v. Massachusetts 849, 858 

Plummer v. Coler 683 

v. Yost 99 

v. Plummer 104 

Plunkard v. State 19 

Plurality Elections, In re 931 

Plymouth v. Painter 897 898 

Pocantico Water Wks. Co. v. Bird 767 

Pocopson Road 765 

Poertner v. Russell 86 

Poindexter r. Greenhow 24, 386, 403 

v. May 841 
Police Commissioners v. Louisville 831 

Police Jury v. Britton 320 

v. Shreveport 267, 268- 

Polinsky v. People 286 

Polk v. State 437 

Polk Co. Sav. Bank v. State 695 

Polk's Lessee v. Wendal 33 

Pollard v. Lyon 605, 606 

v. State 437 

Pollard's Lessee v. Hagan 52, 754, 755 

Polling Lists, In re 906 

Pollock v. Farmers' Loan & Trust 

Co. (157 U. S.) 685 

v. Farmers' L. & T. Co. (158 

U. S.) 601 

v. Hastings 605, 606 

v. McClurken 655 

Pollock's Adm. v. Louisville 805 
Pomeroy v. Chicago, &c. R. R. Co. 791 

Pomfrey v. Saratoga 863 

Pond v. Irwin 86 

v. Negus 113 

v. People 434, 435 

Ponder v. Graham 150 

Pontiac v. Carter 296, 783 

Pool v. Boston 310 

Pope v. Macon 627, 653 

v. Phifer 65, 209 

o. State 451 

Popham v. Pickburn 651 

Porter r. Botkins 608 

v. Hill 80 

v. Mariner 406 

v. Ritch 369 

v. Sabin 

v. Sawyer 924 

Porterfield v. Clark 33 

Port Huron v. Jenkinson 281, 837, 860 

Port Huron, &c. Ry. Co. v. Callanan 818 

v. Voorheis 82S 

Portland v. Banger 18, 568 

v. Portland Bit. Paving I. Co. 713 



xc 



TABLE OF CASES. 



Portland v. Schmidt 257, 291 

v. Water Co. 742 

Portland & R. E. R. Co. v. Deering 822, 

839 

Portland & W. V. R. R. Co. v. Port- 
land 796 
Portland Bank v. Apthorp 679 
Portland H. B. Society v. Kelly 741 
Port Wardens v. The Ward 856 
Portwood v. Montgomery Co. 268, 341 
Posnett v. Marble 628 
Post v. Boston 363 
v. Supervisors 83, 201 
Postal Tel. Co. v. Adams 687, 692 
Postal Tel. Cable Co. v. Baltimore 690 
v. City Council of Charleston 689 
v. Eaton 804 
v. Richmond 689 
Postmaster v. Early 136 
Potter v. Brale 424 
v. Hiscox 584 
Potts v. Penn. S. V. R. R. Co. 823 
Poughkeepsie Bridge Co., Matter 

of 754 

Poundstone v. Baldwin 768, 770 

Powell, Ex parte 40, 160 

v. Board of Education 261 

v. Brandon 52 

v. Holman 941 

v. Jackson Com. Council 206 

v. Pennsylvania 882 

v. Sims 52 

v. Spackman 903 

v. State 77, 137, 469 

v. Sup'rs of Brunswick Co. 30 

Power v. Athens 567 

v. Bowdle 751 

Powers v. Bears 815, 816 

v. Bergen 148, 149 

v. Com. 897 

v. Dougherty Co. 167 

v. Dubois ' 607, 624 

v. Skinner 198 

v. Wright 544 

Powers's Appeal 760, 817, 818 

Poyer v. Des Plaines 883 

Pratt v. Brown 87,548,764,772,777 

v. Donovan 681 

v. Jones 625 

v. Paris G. & C. Co. 26 

v. People 925 

v. Pioneer Press Co. 606, 644 

v. Tefft 514 

Pray v. Northern Liberties 741 

Prentice v. Weston 748 

Prentis v. Commonwealth 192 

Prentiss v. Boston 363 

v. Holbrook 80 

Presbyterian Society v. Auburn, &c. 

R. R. Co. 791 

Prescott v. City of Chicago 209 

v. State ' 46, 423 

v. Tousey 630 

v. Trustees of Illinois & M. Ca- 
nal 195 
President D. & H. C. Co. . Whitehall 807 



Presser v. Illinois 18, 46, 245 

Preston, Re 570, 887 

v. Boston 575 

v. Browder 33 

Prettyman v. Supervisors, &c. 167, 326 
Price v. Baker 932 

v. Hopkin 224, 523, 524 

Price v. Lush 900 

v. Mott 97 

v. New Jersey R. R. Co. 842 

v. State 467, 469, 470 

Prichard's Case 192 

Priestly v. Watkins 403 

Priewe v. Wisconsin State L. & 

Imp. Co. 571, 782 

Primes Estate, Ee 740 

Primm v. Belleville 707, 743 

Prince v. Crocker 696 

v. Skillin 935, 936, 937, 940 

Princeton v. Gieske 304 

Pritchard v. Citizen's Bank 515 

v. Magown 696 

Pritchett v. State 468 

Pritz, Ex parte 182 

Privett v. Bickford 894, 932 

Proctor v. Andover 765 

Prohibitory Amendment Cases 495, 849, 

893 
Proprietors, &c. v. Laboree 523 

v. Nashua & Lowell R. R. Co. 757, 
804, 823, 825 
Proprietors Mt. Auburn Cemetery v. 

Cambridge 396 

Prospect Park, &c. R. R. Co. v. 

Williamson , 807 

Prosser v. Wapello Co. 787 

v. Warner 583 

Prother v. Lexington 356 

Protho v. Orr 119, 209 

Protzman v. Indianapolis, &c. R. R. 

Co. 785, 797 

Prout v. Berry 138 

Providence v. Clapp 363 

Providence, &c. R. R. Co. v. Nor- 
wich, &c. R. R. Co. 807 
Providence & W. Ry. Co., Petitioner 763, 

807 

Providence Bank v. Billings 396, 565, 679 
Providence Coal Co. v. Prov. & 

W. R. R. Co. 875 

Providence Savings Institute v. 

Skating Rink 407 

Provident List. v. Jersey City 20 

Pryor, Be 266 

v. Downey 151, 546 

Pueblo v. Robinson 717, 729 

v. Strait 784 

Pueblo Co. Com'rs v. Smith 168 

Puitt v. Com'rs 667, 708 

Pulford v. Fire Department 200 

Pullman Palace C. Co. v. Hayward 692 

v. Pennsylvania 32, 692 

v. State 709 

Pullen v. Raleigh 272 

Pumpelly v. Green Bay, &c. Co. 783, 787 
Purcell v. Sowler 628 



TABLE OF CASES. 



XC1 



Page 

Purdy v. Erie Ry. Co. 875 

Purvear v. Commonwealth 46, 851 

Puryear v. State 451 

Putnam v. Johnson 903, 904 



Q. 

Quackenbush v. Banks 408, 529 

v. District of Columbia 816 

v. Wisconsin, &c. B. R. Co. 842 

Quarles, Re 568 

v. State 860 

Quarrier, Ex parte 372 

Queen, The, v. Badger 439 

v. Coaks 932 

v. Collins 612-614 

v. Hennessy 177 

v. Justices of Hertfordshire 695 

v. Justices of London 595 

v. Justices of Suffolk 595 

v. Lefroy 643 

v. Newman 658 

v. Pikesley 443 

Quick v. Whitewater Township 92 

Quigley v. Pa. S. V. R. R. Co. 811 

Quill v. Indianapolis 321 

Quimby v. Vermont Central R. R. 

Co. 808 

Quincy v. Jackson 319, 745 

v. Jones 296 

Quinn v. Markoe 911, 929 

ff. State 99, 902, 929 

Quong Woo, Matter of, 294, 890, 891 



R. 



Rabb v. Supervisors 524 

Racine I. Co. v. McCommons 689 

Radcliffe v. Eden 346 
Radcliffe's Executors v. Brooklyn 296, 

781, 783 

Rader v. Road District 267 

v. Union 212 

Rae v. Flint 272 

Rafferty v. Central Traction Co. 803 

Ragatz v. Dubuque 815 

Ragis v. State 213 

Rahrer, Re (43 Fed.) 259 

Re (140 U. S.) 847 

Railway v. Munday 415 

Rail v. Potts 927 

Railroad Co. v. Alabama 24, 410 

v. Bearss 915 

v. Blake 779 

v. Brown 20 

v. Commissioners 694 

v. Com'rs of Clinton Co. 163, 167 

v. Dayton 806 

v. Ellis 886 

. Ferris 813 

v. Foreman 824 

v. Fuller 836, 840, 874 

v. Georgia 34, 47 

v. Gregory 209 



Page 

Railroad Co. v. Hambleton 802 
v. Hicks 237 
v. Husen 881 
v. Jackson 694 
v. Lake 760 
v. Lawrence 802 
v. Maine 394 
v. McClure 62 
v. Mississippi 23, 29 
v. National Bank 35 
v. Peniston 684 
v. Philadelphia 896, 740 
v. Pounds 630 
i;. Prescott 683 
v. Renwick 787 
v. Richmond 510, 781 
v. Rock 30 
v. Shurmeir 801 
v. Tennessee 24, 410 
v. Trimble 42 
v. Warren Co. 114 
v. Whiteneck 209 
Railroad Com. Cases 18, 874 
Railroad Commissioners v. Port- 
land, &c. R. R. Co. 394, 843 
Railway Gross Receipts Tax 689 
Raleigh v. Peace 730, 731 
v. Sorrell 888 
Raleigh, &c. R. R. Co. v. Davis 777 
v. Reid 395 
Ralston v. Lothain 515 
Ramsey v. People 570, 877 
Ramsey County v. Lewis Company 

(72 Minn.) 729, 731 

v. Lewis Company (82 Minn.) 731 

v. MacAlester College 740 

Rand v. Commonwealth 382, 383 

Randall v. Eastern R. R. Corp. 304 

v. Jacksonville, &c. Co. 795 

v. Kehlor 591 

v. Railroad Co. 301 

Randolph, Ex parte 231 

v. Board of Freeholders 824 

v. Good 99, 370 

Randolph Co. v. Rails 588 

Randolph's Executor v. Quidnick 32 

Rangely v. Webster 421 

Ranger v. Goodrich 607 

v. Great Western R. R. 593 

Rankin v. McCallum 267 

v. West 95 

Rape v. Heaton 42, 583, 586 

Rash v. Farley 689 

Rasmussen v. Baker 944 

v. Idaho 853 

Ratcliffe v. Anderson 138 

Rathbone v. Bradford 223 

v. Wirth 158, 244 

Rathbun v. Wheeler 616 

Hatterman v. W. U. Tel. Co. 689 

Ratzky v. People 

Rauch v. Chapman 321 
Rauenstein v. N. Y. L. & W. Ry. Co. 784 

Raw ley v. Hooker 412 
Rawson v. Spencer 261, 268, 269, 345 

Ray v. Manchester 301 



XC11 



TABLE OF CASES. 



Kay v. St. Paul 

v. Sweeney 
Ray Co. v. Bentley 
Raymond v. Fish 
Rea v. Harrington 
Read v. Case 

v. Plattsmouth 
Reading v. Keppleman 

r. Savage 



Page 

362 

62 

348 

858, 854 
606 
487 

183, 210, 336, 539 
296 
183 



Reading & P. R. R. Co. v. Balthasar 822 
Reagan v. Farmers' L. & T. Co. 24, 872 
v. Mercantile T. Co. 873, 874 

Ream v. Kearns 694, 595 

Reardon v. San Francisco 296, 811 

v. St. Louis 355 

Rearick v. Wilcox 623, 624 

Reaume v. Chambers 52 

Recalling Bills, Re 219 

Recht v. Kelly 252 

Reciprocity Bank, Matter of the 62 

Reckner v. Warner 691 

Re-creation of New Counties 199 

Rector v. Smith 612, 630, 631 

Red River Bridge Co. v. Clarksville 757, 

786 

Red River Val. Nat'l Bk. v. Craig 407 

Red Rock v. Henry 217 

Reddall u. Bryan 31, 755, 769 

Redell r. Moores 248 

Redfield v. Florence 923 

Redgate v. Roush 612 

Redmond v. Tarboro 739 

Redwood Co. v. Winona, &c. Co. 631, 712 

Reed v. Beall 404 

v. Belfast 303 

v. Ohio, &c. Ry. Co. 761 

v. Reed 42, 579 

v. Rice 46 

v. State 209 

v. Toledo 271 

v. Tyler 627 

. Wright 603 

Reelfoot Lake Levee Dist. v. Dawson 718 

Rees's App. 770 

Reetz t;. Michigan 890 

Reeves v. Treasurer of Wood Co. 717, 

728, 735, 754, 765, 770, 868 

Reformed Church v. Schoolcraft 522, 

661 

Reformed P. D. Church v. Mott 146, 149 

Regents of University v. Williams 149 

176, 232, 250 

Reggel, Ex parts. 39, 40 

Regina. (See Queen.) 

Regnier v. Cabot 607 

Rehoboth v. Hunt 386 

Reich v. State 281 

Reichert v. St. Louis 791, 828 

Reid v. Delorme 618,619 

v. Ham 41 

v. Norfolk City Ry. Co. 804 

v. Smoulter 99 

Reilly v. Stephenson 607 

Reimsdyke v. Kane 36 

Reining v. N. Y., L. E. & W. R. 

Co. 799, 811 



Page 

Reinken v. Fuehring 714 

Reiser v. Tell Association 136, 137 

Reitan v. Goebel 607 
Reitenbaugh v. Chester Valley R. R. 

Co. 761 

Reithmiller v. People 237 

Remington, In re 454 

r. Congdon 619 

Remington Paper Co. v. Watson 31 

Remsen v. People 466 

Renner v. Bennett 933 

Kennselaer v. Leopold 759 

Reno Smelting Works v. Stevenson 52 

Rentz v. Detroit 729 

Requa v. Rochester 368 

Re-reading of Bills 200 

Response to House Resolution 166, 167 

Respublica v. Dennie 603, 616 

v. Duquet 286, 878 

v. Gibbs 922, 923 

v. Oswald 453, 643 

v. Passmore 643 

Reusch v. Chicago, &c. R. R. Co. 757 

Revis v. Smith 629 

Rex. (See King, The.) 

Rexford v. Knight 809, 814, 815 

Reymann Brewing Co. v. Brister 694 

Reynolds, Ex parte 104 

v. Adden 44 

v. Baker 66, 522, 817, 818 

v. Baldwin 267, 268 

v. Geary 849 

v. New Salem 275 

v. Shreveport 296 

v. State 937 

v. Stockton 41, 42, 43, 44 

v. United States 662, 668 

Rhine t'. McKinney 817 

Rhinehart v. Lance 454 

Rhines v. Clark 691 

Rhodes v. Cincinnati 296 

v. Cleveland 304 

v. Iowa 847 

v. Otis 861 

v. Weldy 96 

Rice v. Austin 162 

v. Des Moines 363 

v. Evansville 302 

v. Foster 163, 171, 173 

v. Parkman 141, 149 

v. Ruddiman 224 

v. State 183, 228 

v. Turnpike Co. 824 

Rice's Case 481 

Rich v. Braxton 750 

v. Chamberlain 160 

v. Chicago 817 

v. Flanders 253, 409, 611, 525, 630, 

544 

Richard Oliver, In re 171 

Richards v. Raymond 261 

r. Rote 151, 646 

v. Wolf 764 

Richardson v. Boston 695 

v. M on son 146 

v. Morgan 717, 730 



TABLE OF CASES. 



XC111 



Richardson v. Roberts 
v. Scott's Bluff Co. 
v. State 

v. Union Cong. Soc. 
v. Vermont Central R. R. Co. 

v. Webster City 

v. Welcome 

Riche v. Bar Harbor W. Co. 
Richland Co. v. Lawrence Co. 266, 
339, 345 

v. Richland Center 
Richman v. Muscatine Co. 

v. Supervisors 
Richmond v. Daniel 

v. Dudley 288 

v. Long 306, 356, 357 

v. McGirr 

v. Richmond, &c. R. R. Co. 390, 

v. Supervisors 
Richmond & A. R. R. Co. v. Lynch- 

burg 

v. Patterson 
Richmond & D. R. R. Co. v. Reids- 

ville 
Richmond, &c. Co. v. Rogers 781, 

Richmond, &c. R. R. Co. v. Louisa, 

&c. R. R. Co. 565, 

Richmond Co. Acad. v. Augusta 
Richmond & My. Ry. Co. v. Hum- 
phreys 

Richmond N. G. Co. v. Clawson 
Ricketts v. Spraker 251, 587, 

Riddle v. Proprietors of Locks, &c. 

351, 

Ridge Street, In re 
Rigg v. Wilton 
Riggin's Ex'rs v. Brown 
Rigney v. Chicago 296, 810, 

Riley v. Rochester 

Riley's Case 383, 

Rima v. Cowan 

Rinard v. Burlington, &c. Ry. Co. 
Ring, Matter of 

7. Wheeler 
Rio Grande, The 
Rippe i'. Becker 

Rison v. Farr 99, 406, 411. 518, 

Risser v. Hoyt 86, 129, 

Ritchie v. People 

River Rendering Co. v. Behr 286, 
Rivers v. Augusta 
Rixner's Succession 
Roach v. Board, &c. 
Roanoke, &c. R. R. Co. v. Davis 
Roanoke City v. Berkowitz 
Robards v. Brown 
Ro Bards v. Lamb 
Robb v. Connolly 
Robbins v. Fletcher 

v. Shelby Taxing Dist. 688 

v. State 

Robbins v. Treadway 606, 628 

Roberson i\ Rochester, &c. Co. 



Page 
607 
198 
628 
661 

781, 
785 
296 
595 
769 

268, 
391 
346 
182 
182 
745 
290 
360 
320 

407, 
565 
630 

717 

852 

709 

785, 
822 

757 
21 

827 
877 
743 
348, 
356 
783 

85 

82 
811 
312 
496 
751 
797 
496 
633 

80 
327 
519 
590 
570 
291 
301 
708 
261 
316 
809 
412 

20 
494 
607 
,694 
464 
629 
510 



Roberts, In re 

v. Caldwell 

v. Calvert 

v. Chicago 

v. Lewis 

v. Louisville 

v. Ogle 

v. People 

v. Reilly 

v. State 
Robertson v. Baldwin 

v. Bullions 

v. Land Commissioner 

v. Omaha 

v. Rockford 
Robeson v. Brown 
Robie v. Sedgwick 
Robinson, Ex parte 

Re 

v. Bank of Darien 

v. Bidwell 



Page 
195, 201 
42 

922, 929, 933, 937 
296, 783 
27 
130 

286. 860, 884 
445 
39,40 
453 
14, 23 
660 
387 
713 

167, 266, 325 
412 
276 

13, 453, 492, 707 
425 

212, 247 
171, 247 



v. Cheboygan Superv. 189 
v. Commonwealth Insurance Co. 35 

Estate of 272 

v. Evansville 301 

v. Greenville 302 

v. Hamilton 890 

v. Howe 413 

t7. Kalbfleish 924 

v. N. Y. & Erie R. R. Co. 786 

v. Oceanic S. N. Co. 37 

v. Pa. Ry. Co. 778 

v. Richardson 434 

v. Robinson 822 

v. Schenck 253, 265 

v. Skipworth 208 

v. State 209 

v. Swope 765 

v. Ward's Ex'rs 41, 583 

. West 588 

v. White 388 

Roby v. Colehour 30 

v. Smith 38 

i>. West 636 

Roche v. Waters 632, 546 

Rochester 17. Collins 271 

v. Rush 312, 695 

v. Upman 710 

Rochester H. & L. R. R. Co., Matter 

of 807 

. N. Y., &c. Co. 807 

Rochester Water Com'rs. Re 758 

Rochester White Lead Co. v. Roches- 
ter 356, 362 

Rockford, &c. R. R. Co. v. Coppin- 

ger 825 

v. Hilmer 843 

Rockland Water Co. v. Camden, &c. 
Co. 

Rockport v. Walden 

Rockwell v. Hubbell's Adm'rs 



549 
522 

406, 408, 
515 

520, 582 
718 



v. Nearing 
Rode v. Siebe 
Ro'demacher v. Milwaukee, &c. R. R. 
Co. 394, 841 



XC1V 



TABLE OF CASES. 



Page 

Roderigas v. Savings Institution 80 
Rodman v. Harcourt 895 
Roe v. Deming 263 
Roethke v. Philip Best Brewing Co. 850 
Rogers v. Bradshaw 813 
v. Buffalo 158, 159, 894 
v. Burlington 167, 319 
v. Coleman 42 
v. Goodwin 106 
v. Greenbush 529 
v. Jacob 910 
v. Jones 279 
v. Manuf. Imp. Co. 213 
v. State 216 
v. Stephens 631 
v. Vass 224 
Rohan-Chabot's Estate, Re 709 
Rohrbacker v. Jackson 901 
Rolfs, In re 454 
Roll o. Augusta 296 
Roller v. Holly 20 
Rollins, Ex parte 496 
Rolpli v. Fargo 731 
Rolston v. Missouri Fund Com'rs 24 
Romaine, Re 708 
Rome v. Omberg 296 
Rood v. McCargar 246 
Roosevelt v. Meyer 31 
Roosevelt, Estate of, Re 709 
Root v. Right 478 
Root's Case 822 
Roper v. Laurinburg 272 
Ropes v. Clinch 25 
Rosdeitscher, In re 177 
Rose v. Hardie 860 
v. Rose 513 
v. Truax 198 
Roseberry v. Huff 749 
Rosenbaum v. Newbern 288 
Rosenblat, Ex parte 39 
Rosenblatt, Ex parte 259, 496, 694 
Rosenbloom v. State 887 
Rosenburg v. Des Moines 358 
Rosenheim v. Hartsock 588 
Rosenthal v. State Board of Can- 
vassers 935 
Rosier v. Hale 515 
Ross v. Clinton 307 
v. Crockett 275 
v. Davis 766, 825 
v. Duval 33 
v. Irving 552 
v. Lister 252 
?'. Mclntyre 47, 456 
v. McLung 33 
v. State 446 
v. Ward 620 
v. Whitman 131 
Ross's Case 383, 496 
Rosser, Re 442 
Rossmiller v. State 673 
Roth v. Ehman 31 
v. House of Refuge 423 
Rothermel v. Meyerle 691, 693 
Rothschild o. Grix 86 
Rounds v. Mumford 296 



Page 

Rounds v. Way mart 217 

Roundtree v. Galveston 717 

Rouse H. & Co. i>. Donovan 671 

Roush v. Walter 867 

Roushlange v. Chicago, &c. Ry. Co. 826 

Rousseau v. New Orleans 406 

Routsong v. Wolf 538 

Rowan v. Runnels 33, 121 

v. State 459, 503 

Rowe v. Addison 757 

v. Granite Bridge Corporation 786 

v. Portsmouth 304, 363 

Rowland v. Kalamazoo Supts. 306 

v. State 400 

Royal v. Thomas 592 

Royal British Bank v. Turquand 323 

Royall, Ex parte 493, 496 

Rozier v. Fagan 148 

Ruch v. New Orleans 475 

Rude v. St. Louis 810, 812 

Rue High's Case 903 

Ruggles v. Collier 294 

v. Nantucket 757 

v. People 875 

Rugh v. Ottenheimer 515 

Ruhl, Re 161 

Ruhstrat v. People 668 

Rulison v. Post 263 

Ruloff v. People 447 

v. State 445 

Rumney v. Keyes 484 

Rumsey v. N. Y., &c. Ry. Co. 782 

t-. People 108, 364 

Rundle v. Foster 478 

Runge v. Franklin 630 

Runnels v. State 444 

Runyon v. Coster's Lessee 178 

Ruohs v. Backer 630, 633 

Rupert v. Martz 406, 548 

Rusch v. Davenport 356, 357 

Rush v. Cavenaugh 482 

Rushing v. Sebree 213 

Rushville v. Rushville N. G. Co. 876 

Rushville Gas Co. v. Rushville 202, 272 

Russell v. Anthony 628 

v. Ayer 120 

v. Belcher 592 

v. Burlington 296 

v. Burton 196 

v. Chittenden 751 

v. Cooley 130 

v. Croy 573, 708 

v. Men of Devon 278,350,355 

v. New York 767, 878 

v. Perry 42 

v. Pyland 924 

v. Rumsey 614, 539 

v. State 262 

v. Whiting 495 

Russellville v. White 284 

Rust v. Gott 924 

v. Lowe 810 

Rutgers v. Mayor of Brunswick 563 

Ruth, In re 851 

Rutherford v. Hamilton 736 

Rutland v. Mendon 85 



TABLE OF CASES. 



XCV 



Rutledge v. Crawford 
Rutter v. Sullivan 
Ryalls v. Leader 
Ryan, In re 

v. L. & U. Terminal Co 

v. Lynch 

v. Thomas 

Rychlicki v. St. Louis 
Ryckman v. Delavan 
Ryder v. State 
Ryegate v. Wardsboro 
Ryerson v. Brown 

v. Utley 207, 209, 

Ryhiner v. Frank 



S. 



Sackett v. Sackett 
Sacramento v. Crocker 
Sadler r. Langham 

Safford v. People 

Sage v. New York 

Saginaw, &c. Ry. Co. v. Bordner 

Sahlinger v. People 

Sailly v. Smith 

Sala o. New Orleans 

Sale u. First Bapt. Ch. 

Salem v. Eastern R. R. Co. 

v. Maynes 

Salem Turnpike v. Essex Co. 
Saleno r. Neosho 
Salt Co. v. Brown 
Salt Creek V. T. Co. v. Parks 
Sailers v. Tobias 
Saltmarsh v. Bow 
Saltpetre Case 
Sam Kee, In re 
Sammons v. Hplloway 
Sams v. King 
San Antonio v. Jones 

v. Lane 
San Antonio & A. P. Ry. Co. v. S. 

W. Telpli. & Telne. Co. 
San Bernardino v. Southern P. Co. 
Sanborn v. Deerfield 

v. Rice 
Sanders, Re 

v. Cabaniss 

v. Getcliell 

v. Hillsboro Ins. Co. 

v. Metcalf 

v. Rollinson 
Sand ford v. Nichols 
San Diego v. Linda Vista Irrig. 

Dist. 

San Diego Land & T. Co. v. Nation- 
al City 

v. Neale 

San Diego W. Co. v. San Diego 
Sands v. Kimbark 

v. Mainstee Riv. Imp. Co. 

Sands v. Richmond 
Sanford v. Bennett 



Page 


Page 


900,923 


San Francisco v. Canaran 267, 346 


167 


v. Liverpool, &c. Co. 707 


637, 639 


v. Western U. Tel. Co. 690 


217 


Sangamon Co. v. Springfield 391 


696, 768 


Sanitary District of Chicago v. 


116,200,201, 


Loughran 826 


31 


San Mateo Co. v. Sou. Pac. R. R. Co. 17, 


304 


505, 712, 723 


609 


San Mateo Waterworks v. Sharp- 


474 


stein 788 


92 


Sans v. Joerris 644 


771. 773, 775 


Santa Ana v. Harlan 827 


, 213, 703, 706 


Santa Clara Co. v. Sou. Pac. R. R. 


624 


Co. 19, 706 




Santa Cruz v. Enright 777 




Santo v. State 163, 170, 237, 246, 248, 




846, 849 




Sargent & Co. v. Tuttle 266 


62 


Sater v. Burlington & M. P. Plank 


725 


R. Co. 821, 822 


106, 250, 764, 


Satterlee v. Matthewson 374, 637, 544 


765, 773 


v. San Francisco 202 


464 


Saul v. His Creditors 178, 217 


782, 787 


Sauls v. Freeman 594 


'dner 777 


Saulsbury v. Ithaca 363 


453 


Saunders v. Baxter 637 


428 


v. Haynes 932 


415 


v. Mills 637, 658 


660 


v. Rod way 485 


884 


v. Springstein 719 


286 


v. Wilson 553 


o. 268 


Savage v. Commonwealth 174 


321 


v. Salem 298 


771 


v. Walshe 114 


ks 571 


Savannah o. Hancock 775 


136 


v. Hartridge 271 


,363 


v. Kelly 320 


878 


v. Spears 304 


883 


v. State 204, 247 


685 


v. Weed 718 


92 


Sa vannah, &c. R. R. Co. v. Savan- 


167 


nah 796 


321 


Savannah F. & W. Ry. Co. v. Geiger 213 


Co. v. S. 


Saving Society v. Philadelphia 278 


762 


Savings Bank v. Allen 637 


P. Co. 690 


v. Bates 537 


323 


Savings & Loan Society v. Multno- 


340, 703, 706 


mah County 21, 695 


853 


Sawyer v. Alton 737 


138 


v. Conn. 827 


905, 927 


v. Corse 356 


406 


v. Insurance Co. 100 


453 


v. Northfield 303 


680 


v. Vermont, &c. R. R. Co. 841 


430 


Saxton v. St. Joseph 302 


a Irrig. 


Sayer v. Phillips 290 


740, 741 


Sayles v. Davis 685 


Nation- 


Sayre v. Wisner 529 


874, 875 


Sayward v. Denny 27 


827 


Scales v. Chattahoochee Co. 348 


iego 872 


v. State 216 


696 


Scanlan v. Childs 104, 106 


;o. 55, 864, 


Scanlon v. Wedger 306 


865 


Scates v. King 82 


860 


Schaaf v. Cleveland M. & S. Ry. Co. 803 


644 


Schaezlein v. Cabaniss 164 



XCV1 



TABLE OF CASES. 



Schattner v. Kansas City 296 

Schee v. La Grange 687 

Schenley v. Alleghany City 717 

v. Commonwealth 515, 529, 535 

Sehideler v. State 470 

Schipper v. Aurora 274 

Schliet v. State 859 

Schlitz v. Roentz 574 

Schmalz v. Woolley 66 

Schmidt, Ex parte 217, 454 

v. Failey 719 

Schneider v. Detroit 785 

Schnier v. People 435 

Schoen Bros. v. Atlanta 290 

Schoenheit v. Nelson 616 

Seholle v. State 163 

Schollenberger v. Pennsylvania 848 

School Board v. Patten 120 

School Directors v. Hart 262 

School District v. Atherton 275 

v. Board of Education 269, 275 

v. Col v in 262 

v. Fogelman 262 

v. Fuess 362 

v. Gage 262 

v. Insurance Co. 182, 348 

v. Merrills 748 

v. Stone 322 

v. Wood 348, 349, 350 

Schoolfield Exec. v. Lynchburg 707 

School Law Manual, In re 182 

Schooner Paulina's Cargo v. United 

States 89 
Schooner Rachel v. United States 516, 

544 

Schopp v. St. Louis 298 
Schroers v. Fisk 80 
Schuchardt v. People 896 
Schular v. State 453 
Schulherr v. Bordeaux 118, 120, 174 
Schultz v. Milwaukee 301 
Schurman v. Marley 62 
Schurmeier v. St. Paul, &c. R, R. Co. 791 
Schussler v. Hennepin County Com'rs 306 
Schuster v. Weiss 386 
Schuyler v. Curtis 510 
Schwab v. Berggren 22 
Schweiss v. First Jud. Dist. Ct 183 
Scituate v. Weymouth 269 
Scofield v. Walk ins 743 
Scotland Co. v. Thomas 321 
Scotland Co. Court v. United States 319 
Scott, Re 442 
Ex parte 161 
v. Clark 225, 226 
v. Coleman 43 
v. Detroit Young Men's Soci- 
ety's Lessee 56, 63 
v. Donald 24, 847 
i;. Fishblate 306 
v. Hooper 677 
v. Jones 30 
v. Manchester 356 
. Mather 553 
v. McKinnish 608 
v. McNeal 80, 575 



Scott r. Sandford 
v. School District 
v. Smart's Ex'rs 
v. Willson 

Scoville v. Canfield 
v. Cleveland 



Page 
89 
262 
237 
861 
181 
716, 728, 730 



Scranton v. Penn. Coal Co. 730 

v. Wheeler 782, 787 

Scranton School Dist., App. of 183 

Scribner v. Rapp 660 

Scripps v. Reilly 637, 650 

Scudder v. Coler 30 

v. Trenton, &c. Co. 775 

Scuffletown Fence Co. v. McAllister 594 

699, 868 

Seaman's Friend Society v. Boston 741 

Seamster v. Blackstock 588 

Searcy v. Grow 932 

Searle v. Clark 941 

v. Lead 754, 784 

Sears v. Board of Aldermen 717 

v. Com'rs of Warren Co. 37 
v. Cottrell 128, 242, 253, 506 

v. Terry 586 

Seattle v. Smyth 891 
Seattle & M. Ry. Co. v. Murphine 826 
. State 756, 758, 778, 807 

Secombe v. Kittelson 59, 63 

v. Railroad Co. 760 
Second Ward Sav. Bk. v. Schrank 404 

Secord v. Foutch 910 

Sedgwick v. Stanton 197 

Sedgwick Co. v. Bunker 268, 515 

Seeley v. Bridgeport 590 

Seely v. Pittsburg 730 

Seery v. Viall 605 

Sego v. Stoddard 900, 911 

Seibert v. Lewis 406, 415 

v. Linton 137 

Seifert v. Brooklyn 304 

Selby v. Bard on s 84 

Selden t;. Jacksonville 781, 783 

Selin v. Snyder 586 

Selkirk v. Stevens 879 

Seller v. Jenkins 605 

Selraa, &c. R. R. Co., Ex parte 167 

Selman v. Wolfe 863 

Selsby v. Redlon 533 

Semayne's Case 428 

Semler, Petition of 495 

Semple v. Vicksburg 306 

Senate Bill, Re 73 

Senate File, In re 60 

Senate of Happy Home Club v. Al- 

pena Co. 164 

Senate Resolution, In re 73, 219 

Seneca Min. Co. Sec'y of State 259 

Senior, Ex parte 455 

Sentell v. N. O. & C. Ry. Co. 881 

Sequestration Cases 414 

Sergeant v. Kuhn 146 

Sen-ill v. Philadelphia 726 

Servatius v. Pichel 619 

Servis v. Beatty 101 
Sessions v. Crunkilton 728, 735, 868 

Sessums v. Bolts 259 



TABLE OF CASES. 



XCV11 



Page 

Settle v. Van Evrea 92 

Setzler v. Va. &c. R. R. Co. 825 

Seven Hickory v. Ellery 220 

Severn v. Regina 832, 858 

Sewall v. Sewall 580 

v. St. Paul 363 

Sewell v. Board of Education 263 

v. State 60 

Sewickley v. Sholes 213 

Sexton v. Todd 607 

Seymour v. Cummins 302 

v. Hartford 741 

v. Turnpike Co. 316 

Shackford v. Newington 331, 701 

Shackleford v. Coffey 773 

Shadden v. McElwee 629 

Shafer v. Mumma 280, 286 

Shaffer v. Union Mining Co. 888 

Shanahan v. City of Waterbury 826 

Shannon v. Frost 660, 661 

Shapleigh v. San Angelo 267 

Sharon Ry. Co.'s App. 807 

Sharp v. Contra Costa Co. 336 

v. New York 210 

v. Spier 717 

v. State 159 

v. Thompson 898 

Sharpe v. United States 828 

Sharp's Ex'rs v. Dunavan 702 

Sharpless v. Mayor, &c. 167, 331, 679, 701 

Shartle v. Minneapolis 363 

Shattuck v. Allen 656 

v. Chandler 52 

Shaver v. Penn. Ry. Co. 556 

Shaw, Ex parte 495 

v. Charlestown 818 

v. Crawford 861 

v. Dennis 702, 738 

v. Macon 176 

v. Moore 677 

v. Nachwes 497 

v. Norfolk R. R. Corp. 541 

v. Thompson 484 

Shawnee County v. Carter 111 

Shawneetown v. Mason 296 

Sheahan v. Collins 644 

Shealy v. Chicago, &c. Ry. Co. 786 

Shear v. Box 68 

Shearlock v. Beardsworth 609 

Sheckell v. Jackson 642 

Sheehan v. Sturges 486 

Sheehy v. Kansas City, &c. Co. 812 

Sheely v. Biggs 605 

Shehan's Heirs v. Barnett's Heirs 146 

Shelby v. Guy 33, 522 

Shelby County v. Tennessee C. Exp. 

Co. 696 

v. Union and Planters' Bk. 31, 738, 

740 

Shelbyville Water Co. v. People 720 

Sheldon, Ex parte 40 

v. Fox 288 

v. Kalamazoo 362 

v. Wright 685, 586, 587 

Sheley v. Detroit 719, 728 

Shelter v. Gooding 613 



Page 

Shelly's Appeal 52 

Shonandoah V. R. R. Co. v. Griffith 83 
v. Shepherd 822, 825 

Sliepard v. Dowling 240, 848 

Shepard's Case 15 

Sliepardson v. Milwaukee, &c. R. R. 

Co. 267, 815, 816, 817 

Shephard v. Wheeling 132 

Shepherd v. Chelsea 301 

v. Commissioners 891 

v. People 381 

Shepherd's Fold v. Mayor, &c. N. Y. 698 

Sheppard's Election Case 929 

Sherbourne v. Yuba Co. 355, 357 

Sheridan v. Salem 216 

Sherman v. Buick 765 

v. Carr 308 

v. Langham 387 

v. Milwaukee, &c. R. R. Co. 761 

v. Story 194 

Sherman Co. v. Simons 322, 348 

Sherrard v. Lafayette Co. 320 

Sherwood v. Dist. Columbia 363 

v. Fleming 540 

Shideler v. State 470 

Shields v. Bennett 209, 216 

v. Clifton H. Land Co. 535 

v. Coleman 27 

v. Durham 305 

v. Jacob 900 

v. McGregor 911, 932 

Shifflet v. Commonwealth 444 

Shiner v. Jacobs 402 

Shipley v. Todhunter 612 

Shipp v. McGraw 605 

v. Miller 83 

v. State 453 

Shipper v. Pennsylvania R. R. Co. 38 

Shires v. Commonwealth 13 

Shissler v. People 577 

Shobert v. May 454 

Shock v. McChesney 629 

Shoemaker v. United States 756, 768, 

775, 778, 824, 826 

Sholl v. German Coal Co. 765, 777 

Shonk v. Brown 151, 529, 540 

Shore v. State 438 

Short v. Bullion B. & C. Mining Co. 891 
Shorter, Matter of 371 

v. People 434 

v. Smith 398 

Shotridge, Re 455, 638 

Shotwell v. Moore 683 

Shoultz v. McPheeters 129 

Shover v. State 676, 859 

Shrader, Ex parte 133,853 

Shreveport v. Levy 658, 663 

v. Prescott 279 

Shrunk v. Schuylkill Nav. Co. 781, 782 
Shuman v. Fort Wayne 425 

Shumate v. Heman 714 

Shumway v. Bennett 133, 143, 263 

v. Stillman 42 

Shurbun v. Hooper 895 

Shurtleff v. Parker 619 

v. Stevens 619, 637, 647, 648 



XCVU1 



TABLE OF CASES. 



ShurtleffV Wiscasset 
Sibley v. Williams 
Sic, In re 

Sidgreaves v. Myatt 
Sidwell v. Evans 
Siebold, Ex parte 
Siegfried v. Kaymond 
Sifers v. Johnson 
Sigourney v. Sibley 
Sikes, Ex parte 
Silberman v. Hay 



Page 
322 
62 
281 
607 
861 

281, 492, 901 
687 
879 

592, 595 
283 
182 



Silkman v. Bd. Water Com'rs 287 

Sill v. Corning 237, 242 

Silliman v. Cummins 538 

Sills v. Brown 452 

Silsbee v. Stockle 546, 751 

Silver Bow Co. v. Strombaugh 618 

Silver Lake Bank v. North 180 

Silvey v. Lindsay 905 

Silvus v. State 466 

Simmer v. St. Paul 304 

Simmonds v. Simmonds. 139 

Simmons, Ex parte 495 

v. Camden 296 

v. Commonwealth 177 

v. Holster 605 

v. Saul 42, 43 

v. United States 469 

. West. U. T. Co. 656 

v. Wilson 745 
Simmons Hardware Co. v. McGuire 694 

Simms v. Railroad Co. 814 

Simon r. Craft (182 U. S.) 572, 581 

v. Craft (118 Ala.) 672 

v. Durham 936 

v. Northrup 337 

Simonds v. Simonds 154, 558 

Simonds's Ex'rs v. Gratz 676 

Simons v. People 930 

Simpson v. Bailey 210 

v. Savings Bank 406, 530 

v. State 62, 177 

Simrall v. Covington 290 

Sims, Re (118 Fed. Rep.) 695 

Re (54 Kan.) 425 

v. Daniels 900 

v. Gay 587 

v. Irvine 33 

v. Jackson 707 

v. Sims 43 

v. State 470 

Sinclair v. Jackson 232 

Singer v. Bender 606 

v. State 886 

Singer Mfg. Co. v. Fleming 180 

v. McCollock 256 
v. Wright 688, 690, 876 
Single v. Supervisors of Marathon 209, 

642 

Sing Lee, Ex parte 291 

Singleton v. State 160 

Sinking Fund Cases 394 

Sinks v. Roese 177, 905 

Sinton v. Ashbury 267, 336 

Sioux City v. School District 742 

Sioux City B. Co. v. Dakota Co. 719 



Page 

Sioux City, &c. R. R. Co. v. Washing- 
ton Co. 712 
Sioux City T. & W. Co. v. Trust of 

N. A. 32 

Sioux Falls v. Kirby 290 

Sipe, Re 290 

Skaggs v. State 450 

Skaneateles Water Works Co. v. Skan- 

eateles 383, 393, 565 

Skelding v. Whitney 80, 81 

Skellenger v. Smith 539 

Skillman v. Chicago, &c. Ry. Co. 404, 809 

Skinner, Ex parte 497 

i;. Hartford Bridge Co. 296, 783 

v. Henderson 697 

v. Santa Rosa 819 

Slack v. Jacob 89, 253, 254, 258 

v. Maysville, &c. R. R. Co. 99, 167, 

325, 699 

Slade v. Slade 80 

Slater, Ex parte 436 

Slatten v. Des Moines Valley R. R. 

Co. 785, 826 

Slaughter v. Commonwealth 37 

v. Louisville 706 

v. O' Berry 289 

v. People 281 

Slaughter-House Cases 18, 38, 401, 402, 

418, 457, 567, 668, 832 

Slauson v. Racine 248, 249 

Slave Grace, The 422 

Slaven v. Wheeler 595 

Slay maker v. Phillips 911 

Slayton r. Hulings 110, 114 

Sleght v. Kane , 370 

Slemmer v. Wright 482 

Slinger v. Henneman 167, 174 

Sloan v. Biemiller 752 

v. Cooper 80 

v. Pacific R. R. Co. 392, 838, 839 

v. State 2G6 

Smails v. White 209 

Small v. Danville 360 

Smalley v. Anderson 607 

Smead v. Indianapolis, &c. R. R. Co. 321 

Smeaton v. Martin 778, 814 

Smiley v. McDonald 562 

Smith, Ex parte 39, 40, 278, 934 

Matter of 46 

Petition of 496 

v. Adrian 173 

v. Alabama 688, 844, 857 

v. Appleton 415 

v. Ballantyne 82 

r. Bohler 208 

v. Brown 422 

v. Bryan 615 

v. Burrus 645 

v. Callanan 761 

v. Cheshire 320 

v. Clark Co. 324 

v. Cleveland 627, 545 

v. Commonwealth 210, 212, 444 

v. Connelly 773 

v. Eastern R. R. Co. 841 

. Frisbie 689 



TABLE OF CASES. 



XC1X 



Page 

Smith v. Good 63 

v. Gould 422 

v. Hard 631 

v. Howard 629 

v. Hoyt 225, 218 

v. Hunter 30 
v. Inge 

v. Jackson 687 

v. Janesville 169, 171 

v. Judge 131, 242 

v. Kingston 730, 860 

v. Knoxville 285 

v. Leavenworth 363 

v. Levinus 265 

v. Long 478 

v. Louisville 710 

v. Macon 238 

v. Maryland 46 

v. McCarthy 166, 232 

v. McDowell 572 

v. Merchand's Ex'rs 533 

v. Milwaukee B. & T. E. 288 

w. Moore 895 

v. Morrison 224, 524 

v. Morse 272, 294 

>. Myers 162 

v. Nelson 660 

v. Norment 162 

v. Packard 406, 413 

v. People 100, 452 

v. Reeves 24 

v. Rice 585 

v, Scott 639 

v. Sedalia 782 

v. Sellinsgrove 301 
v. Sherry 348, 523, 546, 722 

t>. Short 684 
v. St. Louis & S. W. Ry. Co. 854 

v. Shriver 34 

v. Silence 607 
v. Smith 42, 44, 222, 679, 580, 606 

v. Speed 231, 453 
v. State 16, 40, 160, 473, 87!) 

v. Stewart 606 

v. Strother 132 

v. Swormstedt 661 

v. Thomas 611 

v. Thursby 89 

v. Township Board 262 

v. Trimble 589 

v. Van Gilder 406 

v. Washington 296, 783 

v. Worcester 714 

Smith, Mary, Case of 444 

Smith M. P. Co. v. McGroosty 38 

Smither v. Campbell 194 

Smoot v. Wetumpka 356 

Smyth v. Ames (169 U. S.) 20, 24 

v. Ames (171 U.S.) 874,875 

v. McMasters 924 

v. Titcomb 166 

Sneider v. Heidelberger 408 

Snell, In re 496 

Snider v. St. Paul 805 

Snohomish Co. v. Hay wood 815 

Snow v. Fitchburg 736 



Snowhill v. Snowhill 
Snyder v. Andrews 

v. Bull 

v. Ft. Madison St. Ry. Co. 

.v. Fulton 

v. Pennsylvania R. R. Co. 

v. Rockport 
Society, &c. v. Wheeler 



Page 
146 
656 
640 
803 
658 
791 
296 

34, 523, 530, 
553 

Society for Savings v. Coite 683 

Society of Scriveners v. Brooking 282 

Sohier v. Massachusetts Hospital 146 

v. Trinity Church 660 

Solomon v. Cartersville 219 

v. Commissioners 220 

v. Oscoda 749 

Somers v. Met. El. Ry. Co. 801 

Somerset & Stoystown Road 217 

Somerville v, Hawkins 610 

Somerville & Eastou R. R. Co. ads. 

Doughty 821, 823, 825 

Sommers v. Johnson 408 

Sommersett's Case 422 

Soon Hing v. Crowley 258 

Soper v. Harvard College 888 

Sorchan v. Brooklyn 114 

Sorocco v. Geary 757, 878 

Sortwell v. Hughes 850 

South & North Alabama R. R. Co. v. 



Morris 

Southard v. Central R. R. Co. 
South Bend v. Martin 

v. Reynolds 

South Branch L. Co. v. Ott 
South Carolina R. R. Co. v. Steiner 



246, 556 
540 
690 

318, 321 
32 
791, 
794 

South Chicago Ry. Co. v. Dix 766 

South Covington & C. S. Ry. Co. v. 

Berry 288 

Southern B. & L. Ass'n v. Norman 180 
Southern Express Co. v. Com. 472 

Southern Pac. Ry. Co. v. Denton 27, 179 
South Ottawa v. Perkins 194, 320 

Southport v. Ogden 279 

Southwark Bank v. Commonwealth 89, 

193, 194 

South-western R. R. Co. v. Paulk 844 

v. Telegraph Co. 814, 817 

Southwest Mo. L. Co. v. Toplin 383 

South wick v. South wick 525 

Southworth v. Edmonds 749 

v. Palmyra & Jacksonburg R. R. 

Co. 201 

Soutter v. Madison 415 

Sovereign v. State 215 

Sowders v. Edmunds 585 

Spaids v. Barrett 634 

Spain, Re 689 

Spangler v. Jacoby 116, 193, 201 

Spangler's Case 26, 494 

Sparhawk v. Sparhawk 138, 156 

Sparrow v. Kingman 86 

Spaulding v. Lowell 888 

Speakership, Re 190 

Spealman r. Railroad Co. 841 



Spears v. State 



445 



TABLE OF CASES. 



Specht v. Commonwealth 
Speer v. Athens 

v. Plank Road Co. 

v. School Directors 
Speidel v. Schlosser 
Speight v. People 



Page 

675, 859 

194, 732 

218 

330. 699 

.121 

183 



Spencer v. Board of Registration 901 
v. Dearth 80, 83 

v. McMasters 607 

v. Merchant 698, 699, 711, 714, 722, 

729 

v. Met. St. Ry. Co. 827 

v. State 89,90,216,217 

Spengler v. Trowbridge 271 

Sperry v. Flygare 713 

v. Willard 192 

Spickler, Re 259 

Spier v. Baker 900 

Spiering v. Andrae 628 

Spies v. Illinois 46, 457 459 

Spill 17. Maule 647 

Spiller v, Woburn 263, 665 

Spillman v. Williams 588 

Splane v. Commonwealth 860 

Split Rock Cable Road Co., Re 767 

Spooner v. McConnell 65, 56, 176 

Sporrer v. Eifler 11, 685 

Spragg v. Shriver 151 

Sprague v. Birdsall 566 

v. Brown 99 

v. Fletcher 38 

v. Norway 929 

v. Tripp 306 

v. Worcester 784, 786 

Spraigue v. Thompson 688 

Spreckler v. Wakeley 406, 408, 521 

Spreckles v. Spreckles 513 

Sprigg v. Telegraph Co. 394 

Spriggins v. Houghton 928 

Spring 17. Russell 700 

Springer v. Foster 34, 417 

v. United States 680, 748 

Springfield v. Connecticut River 

R. R. Co. 757, 789, 791 

v. Doyle 358, 363 

v. Green 717 

v. Le Claire 356, 362 

t7. Springfield St. Ry. Co. 393 

Springfield F. & M. Ins. Co. v. Kes- 

seville 305 

Springfield, &c. R. R. Co. v. Cold 

Spring 319 

v. Hall 760 

Spring Valley Water Works v. 

Barber 720 

v. San Francisco 565, 872 

v. San Mateo W. Works 778 

v. Schottler 394 

Springville City v. Thomas 458, 460 

Squire v. Mudgett 408 

Staats v. Washington 285 

Stackhonse v. Lafayette 356 

Stackpole v. Hallahan 900 

17. Hennen 633 

Stacy 17. Vermont Central R. R. Co. 761 

St. Albans v. Bush 583 



Stamp v. Cass Co. 310 

Stanchfield v. Newton 304 

Stand if ord -.-. Wingate 389 

Stanfield v. Boyer 607 

Stanfill v. Court of Co. Kev. 265 

Stanford, Matter of 317 

17. Worn 760 

Staniford v. Barry 136 

Stanley, Ex parte 440 

v. Colt 146 

v. Davenport 797, 806 

v. Schwalby 27, 28, 524 

v. Stanley 844 

t7. State 178 

v. Wabash St. L. & P. Ry. Co. 853 

17. Webb 637, 638, 640 

Stannard's Corners R. C. A. v. Brandes 

767, 770 

Stanton v. Metropolitan R. C. Co. 859 
St. Anthony Falls W. P. Co. v. 

Com'rs 26, 387, 863 

Stanwood v. Maiden 781 

Starbuck v. Murray 42, 583 

Starin v. Genoa 140, 320 

Starkweather v. Bible Society 180 

Starr v. Camden, &c. R. R. Co. 791, 806 

v. Pease 156, 157 

State, Ex parte 1 19 

v. Adams 138, 370, 372, 393, 534, 

896, 941 

17. Adams Exp. Co. 163, 570 

v. Agee 694 

v. Ah Chew 885 

v. Ah Sam 205, 208 

v. Aiken 848 

v. Albee 459 

17. Aldrich 904 

v. Algood 195, 205 

v. Allen 466, 656, 591, 655 

17. Allmond 845 

17. Alman 452, 468 

17. Almy 454 

17. Alston 709 

v. Arabs 676, 869 

v. Amery 250 

v. Anderson 183, 456, 893, 899, 900 
17. Applegarth 690, 713 

v. Arlin 376, 377 

v. Armington 680 

17. Arms 899 

t7. Armstrong 144 

v. Ashbrook 558, 837 

v. Ashley 237 

r. Askew 99 

17. Associated Press 877 

v. Atwood 629 

17. Avery 937 

v. Auditor 517, 529 

t7. Austin 288 

v. Babcock 121, 272 

v. Bacon 194 

v. Bailey 224, 878 

v. Baker 99, 906, 907 

17. Balch 628 

r. Baltimore, &c. R. R. Co. 517, 675 
v. Bank 410 



TABLE OF CASES. 



Cl 



Page 


Pag* 


State v. Bank of South Carolina 410 


State v. Brewster 93, 99 


v. Banker's, &c. Association 212 


v. Broadbelt 882 


v. Barbee 97, 529 


v. Brock man 445 


v. Harden 923 


v. Brookhart 96 


v. Barge 282 


v. Brooks 441, 446, 469 


v. Barker 244, 386, 859 


v. Brown 129, 177, 195, 423, 462, 485 


v. Barnes 101 


v. Brown & S. Mfg. Co. 568 


v. Barnett 46 


v. Brunetto 452 


v. Barrels of Liquor 850 


v. Brunst 389 


v. Barrett 402, 485 


v. Buchanan 62, 73, 891 


v. Bartlett 177, 448 


v. Buck 451 


v. Bate 941 


v. Buckeley 897 


v. Bates 47 


v. Bundy 437 


v. Battle 469 


v. Bunker 276 


v. Beacon 183 


v. Burbridge 929 


v. Beal 449 


v. Burdge 164, 880 


v. Beattie 287 


v. Burdick 900 


v. Beddo 215 


v. Burgdoerfer 212, 574 


v. Bee Pub. Co. 646 


v. Burgoyne 400 


v. Behimer 470 


v. Burlington 303 


v. Belvel 436 


v. Burlington & Mo. Ry. Co. 194 


v. Beneke 163, 170, 591 


v. Burnett 938 


v. Benham 470 


v. Burnham 612, 619, 630, 636, 


v. Bennett 177, 709 


648, 658 


v. Berg 934, 936 


v. Burns 462 


v. Berka 205 


v. Burr 481 


v. Berkley 441 


v. Butman 644 


v. Berlin 555, 849 


v. Butt 129 


v. Bernoudy 372 


v. Butts 906 


v. Berry 217 


v. Buzine 39 


v. Beswick 451 


v. Buzzard 499 


v. Bibb St. Ch. 661 


v. Cadigan 38 


v. Bienvenu 619 


v. Cain 215, 217 


v. Billings 572 


v. Caldwell 689 


;. Binder 893, 931 


v. Callendine 467, 468 


v. Bishop 66 


v. Callicut 79,89l 


v. Bixman 686 


v. Camden Common Pleas 183 


v. Black 899, 900, 923 


v. Cameron 447 


v. Blaisdell 469 


v. Campbell 12, 52, 451, 882 


v. Bland 893 


v. Canfield 507 


v. Blasdel 89 


v. Cape Girardeau, &c. R. R. Co. 49. 


v. Bloom 898 


253 


v. Blossom 897 


v. Cape May (59 N. J. L.) 297 


v. Board of Assessors (55 N. J. L.) 690 


v. Cape May (59 N. J. L.) 297 


v. Board of Assessors (57 N. J. L ) 690 


v. Cape May (59 N. J. L.) 298 


v. Board of Education 262, 263, 679 


v. Capital City Dairy Co. 849, 882 


v. Board of Health 853 


v. Cardozo 253 


v. Board of Ins. Com'rs 38 


v. Carew 414 


v. Board of Liquidation 262 


v. Carman 458 


v. Boardtnan 289 


v. Can 363, 896 


v. Bode 900 


v. Carro 46 


v. Bond 224, 906 


v. Carroll 898, 928 


v. Bonnell 275 


v. Cassidy 284, 710 


v. Bonney 575 


v. Cavers 920, 935 


v. Boone County Court 74 


v. Cawood 62 


v. Borowsky 458 


v. Central N. J. T. Co. 762 


v. Bostick 445 


v. Chambers 444 


v. Boswell 436 


v. Champeau 468 


v. Bott 675, 676 


v. Chandler 43, 670, 671, 672 


v. Boucher 159 


v. Chapel 


v. Bowers 206, 209 


f. Chapman 848 


t\ Bracco 694 


v. Charleston 691, 728, 745, 868, 935 


v. Branin 266, 267 


v. Chicago M. & St. P. Ry. Co. 837, 


v. Brassfield 893 


889 


v. Brecht 469 


v. Chicago, &c. Ry. Co. (70 


v. Brennan's Liquors 434, 591 


Iowa) 787, 875 



Cll 



TABLE OF CASES. 



Page 


Page 


State v. Chicago, &c. Ry. Co. (40 


State v. Crawford 437 


Minn.) 875 


v. Creeden 848 


v. Church 924 


v. Crenshaw 284 


v. Churchill 592 


v. Crescent City C. Co. 882 


v. Cincinnati 348, 722 


v. Cross 216 


i: Cincinnati Gas Co. 306, 562, 


v. Croteau 464 


789, 797 


v. Crounse 222 


v. Circuit Court 174, 213, 455, 646 


v. Crowell 661 


v. City Council of Charleston 8r>9 


v. Crummey 280 


v. Clark 183, 202, 285, 470 


v. Cumberland R. R. Co. 707 


v. Clarke 247, 279, 284, 285, 286, 895, 


v. Cummings 52, 177, 372 


932 


v. Cunningham (81 Wis.) 74, 931, 932 


v. Clausmeire 424, 425 


v. Cunningham (83 Wis.) 74, 931 


v. Cleaves 448 


v. Curtis 469 


v. Clerk of Passaic 935, 937, 941 


v. Dahl 60 


v. Click 114 


?'. Daley 616 


v. Clinton 44!) 


v. Dalton 669, 885, 889 


v. Coahoma Co. 220, 223 


v. Danforth 472 


v. Cobaugh 846 


v. Daniels 927 


v. Coffee 446 


v. Davis 218, 458 


v. Coleman 437 


v. Dawson 478 


v. Coleman & Maxcy 505 


v. Dean 717 


v. Colgate 467 


v. De Gress 895 


v. Collector of Jersey City 743 


v. Demorest 331 


v. Collier 924 


r. Denny 158, 166, 194, 218, 243, 248, 


v. Colon 66 


334, 894 


v. Commissioners 217, 321 


v. Dent 20, 890 


v. Com'rs of Baltimore 247 


v. Denton 459 


v. Com'rs of Clinton Co. 167 


v. De Ranee 437 


v. Com'rs of Hancock 167 


v. Des Moines 163 


v. Com'rs of Ormsby Co. 130 


v. Dews 389 


v. Com'rs of Perry Co. 248, 249 


v. Dierberger 898 


v. Com'rs of R. R. Taxation 394 


v. Dillon 900, 902 


v. Com'rs of School, &c. Lands 414 


v. Dimick 177 


v. Common Council of Madison 272 


v. District Board 666 


v. Common Pleas 676 


v. District Court 173, 722, 814 


v. Cone . 901 


v. Divine 437 


v. Congdon 453 


v. Dodson 160 


v. Connor 468 


v. Doherty 153, 159, 505, 546, 938 


v. Constantino 931 


v. Dombaugh 248 


v. Constitution 858 


v. Donehey 849 


v. Cook 487 


v. Donewirth 937 


v. Cooke 174, 400 


v. Donovan 183 


v. Cooler 381 


r. Doron 89, 101 


v. Cooley 740 


v. Dortch 937 


v. Cooper 470 


v. Douglass 388 


v. Copeland 163, 173, 246 


v. Dousman 249 


v. Copp 453 


v. Dow 879 


v. Corbett 886, 887 


v. Draper 216, 389, 940 


v. Cornell (53 Neb.) 696 


o. Duckworth 854 


v. Cornell (60 Neb.) 212 


v. Duffy 657, 559 


v. Corner 906 


. Dugan 751 


v. Corson 382 


v. Duket 154 


. County Canvassers 935 


v. Dunning 161 


v. County Commissioners 555, 936 


v. Du Paquier 882 


v. County Com'rs of Baltimore 114, 


v. Dwyer 279 


555 


v. Eason 312 


v. County Court 183, 742 


v. Easterbrook 247 


v. County Court of Boone 182 


v. East Fifth St. Ry. Co. 297 


v. County Judge 936 


v. Eby 674 


v. County Judge of Davis 205, 207 


v. Echols 893, 908 


v. Covington 158, 214 


v. Edwards (La. Ann.) 381 


v. Cowan 266, 280 


v. Edwards (86 Me.) 871 


v. Cox 246, 458 


v. Eidson 722 


v. Craig 694 


v. Elder 938 


v. Crane 594 


v. Elizabeth (66 N. J. L.) 182 



TABLE OF CASES. 



cm 





Page 


Page 


State v. Elizabeth 


(58 N. J. L.) 288 


State v. George 159, 894 


v. Elliott 


451 


v. Georgia Medical Society 279 


17. Ellis 


177, 225, 923 


v. Gerger 215 


r. Elting 


925 


v. Gerhardt 173, 845 


r. Elwood 


914, 917, 920 


v. Gerry 591 


i7. Emery 


469 


v. Gibbs 474, 936 


v. Endom 


707 


v. Gibson 455, 557 


v. Engle 


487 


v. Giles 932 


v. Engleman 


775 


v. Oilman 3V, 189, 837, 849 


v. Epliraitn 


467, 468 


v. Gladson 852 


v. Estabrook 


707 


v. Gleason 132 


v. Everett 


458 


v. Glenn 104, 115, 218, 455 


v. Fagan 


220, 259 


v. Godwin 259 


v. Falley 


900 


17. Goetze 909 


v. Farris 


G61 


t7. Goff 895 


v. Feibleman 


895 


v. Goldstucker 99 


v. Felton 


437 


17. Good 931 


v. Ferguson 


211, 270, 271, 292, 529 


r. Goodwill 559, 572, 877 


v Ferris 


709 


v. Gordon 280 


v. Fetter 


937 


v. Gorham 690 


v. Field 


170, 173 


17. Governor (5 Ohio St.) 162 


v. Finch 


289 


v. Governor (25 N. J.) 162, 935 


t7. Findley 


902 


w. Governor (39 Mo.) 162 


v. Fire Creek, &c. Co. 234, 559, 572, 


v. Graham 262 




877 


v. Graves 295, 299, 449, 813, 816 


v. Fireman's Fund Ins. Co. 66 


v. Gravette 561, 563 


v. Fisher 


888 


v. Green 467, 560, 748, 893 


v. Fiske 


294 


17. Greer 393, 530 


v. Fitzgerald 


451 


v. Gregory 676 


v. Fitzpatrick 


430, 591 


v. Grey 62 


. Fleming 


138 


v. Griffey 915, 920 


v. Foley 


160, 336, 414, 860 


v. Griffin 754, 880 


v. Fooks 


441 


v. Griswold 424, 442 


v. Foraker 


202 


v. Guilbert 134, 569 


v. Ford 


628 


v. Guild 445, 447 


v. Forkner 


164 


v. Gurney 210, 591 


v. Forshner 


647 


v. Gut ' 209 


v. Fosdick 


38 


v. Gutierrez 242 


v. Foster 


887, 888, 936 


v. Guttenberg 531 


v. Fox 


244 


i7. Haben 337, 343, 703 


v. Fraelich 


832 


v. Hager 469 


17. Framburg 


452 


r. Hairston 557 


v. Francis 


173, 189, 194, 893, 937 


v. Halifax 737 


i?. Frank 


194 


v. Hall 39, 41 


v. Franklin Falls Co. 524 


r. Halliday 692 


v. Franks 


922 


17. Hallock 98 


v. Frederic 


451 


t?. Hamlin 708 


v. Freeman 


243, 281, 285, 335, 452 


v. Hammer 183 


v. French 


708, 718 


v. Hammonton 307 


v. Frew 


643 


v. Hannibal, &c. R. R. Co. 740 


v. Friedley 


64 


v. Harbourne 885 


v. Fritz 


589 


v. Hardin 449 


v. Fry 


156 


v. Harrington 233, 888 


v. Fuller 


711, 728 


v. Harris 333 


i'. Furnell 


709 


. Harrison 209, 275, 935, 937 


17. Gaffney 


695 


v. Hart 311 


v. Gaines 


215 


v. Hartley 458 


t?. Gammon 


91 


v. Haskins 626 


v. Garbroski 


184 


17. Haun 568, 570 


v. Gardiner 


443 


v. Hawkins 159, 183 


v. Garesche 


372 


77. Haworth 262 


v. Garton 


685 


v. Hawthorn 411 


t7. Garvey 


447 


i?. Hay 880 


v. G ates 


467, 917, 918 


?7. Hayden 495 


v. Gatzweiler 


405 


v. Hayes 170 


v. Geer 


879 


17. Hayne 709, 935 



CIV 



TABLE OF CASES. 



Page 


Page 


State v. Hays 259 


State v. Johnson 115, 177, 451, 530, 691, 


v. Heard 105 


932, 937, 938 


v. Hebrew Congregation 661 


v. Johnson (30 Fla.) 159 


v. Height 443 


v. Johnson (61 Kan.) 130 


v. Henderson 159, 215 


v. Johnson (18 Mont.) 900 


v. Henley 67 


v. Jones (5 Ala.) 464, 466 


v. Henry 466 


v. Jones ( 19 Ind.) 275, 909, 929 


v. Heppenheimer (54 N. J. L.) 768 


v. Jones (21 Md.) 621 


v. Heppenheimer (58 N. J. L.) 740 


v. Jones (50 N. H.) 437 


v. Hernan 580 


v. Jones. (7 S. E. Rep.) 453 


v. Herod 283 


v. Jones (66 Ohio) 183 


v. Heyward 392 


v. Jones (6 Wash.) 195 


v. Heywood 207 


. Judge 225, 595, 675, 940, 941 


f. Hicks 876 


v. Judge of Co. Court 257 


r. Higgins 425, 570 


v. Judges 28, 144 


v. Higgs 289 


v. Julow 67, 560, 887 


v. Hilbert 395, 396 


v. Jumel 499 


v. Hill 289, 935, 936 


v. Justices of Middlesex 937 


v. Hilmantel 906, 913, 914, 932, 941 


v. Kalb 388 


943 


v. Kanouse 462 


v. Hinman 560 


v. Kansas City 741, 825 


v. Hitchcock 74, 182 


v. Karstendick 287, 884 


v. Hoagland 173, 183, 208 


v. Kason 468 


v. Hoboken 283 


v. Kattleman 470 


v. Hocker 592 


v. Kaufman 468 


v. Hockett 133 


v. Keenan 884 


v. Hogan (63 Ohio) 16, 473, 558 


v. Keith 62, 281, 376 


v. Hogan (24 Mont.) 900 


v. Kelly 177, 452 


v. Hogriever 859 


v. Kelsey 73, 104 


r. Holcomb 286 


v. Kemp 462 


v. Holden 166 


v. Kempf 190 


v. Holladay 121 


v. Kennedy 849 


v. Holleyman 848 


v. Kenney 557 


v. Hooker 451 


v. Kennon 101, 158 


v. Hopper 134, 137, 138 


f. Kent 460 


v. Hoskins 845, 880 


v. Keokuk 740 


v. Hosmer 589 


v. Kettle 470 


v. Hostetter 896 


v. Kiesewetter 118, 218 


v. Howell 218, 220 


v. King 90 


v Hoyt 437 


v. Kinsella 213 


v. Hudson Co. 355 


v. Kirke 481, 895 


v. Hudson County Bd., &c. 827 


v. Kirkley 165, 274 


v. Hudson Co. Com'rs 163, 740 


v. Kirkwood 162 


v. Hufford 40 


v. Kirschner 160 


v. Humphreys 895 


v. Klein 710 


. Hundley 437 


v. Klinger 437 


v. Hunter 334, 573 


v. Knight 177 


v. Hurley 437 


v. Knowles 19 


v. Hutt 895 


v. Kolsem 182 


v. Hyde 159 


v. Kramer 938 


v. 111. Centr. R. R. Co. 205 


v. Krebs 665 


r. Ind. & I. S. R. Co. 853 


v. Kreitzberg 887 


v. Indiana & O. G. & M. Co. 853, 858 


v. Kruttschnitt 236 


v. Indianapolis 556, 741 


v. Lafayette Co. Court 209, 213, 236 


v. Ingersoll 215 


i\ Laiche 199 


v. Ins. Co. 707 


v. Lamberton 937 


r. Itzcovitch 290 


v. Lancaster 37 


v. Jackman 286, 784, 861 


v. Lancaster Co. 212, 893 


v. Jackson 331, 557, 683, 878 


v. Langlie 893 


v. Jacksonville St. Ry. Co. 803 


v. Lansing 100 


v. Jarrett 189 


v. Lash 95 


v. Jay 655 


v. Lathrop 707 


v. Jefcoat 453 


v. Layton 882 


r. Jennings 267 


v. Laverack 790, 800, 804 


v. Jersey City 281, 292, 294, 717, 


v. Lawrence 448 


840, 861 


v. Lean 113, 225 



TABLE OF CASES. 



CV 





Page 


Page 


State v. Learned 


382 


State v. McNiell 167 


v. Lebanon & N. T. Co. 


392 


v. Mead 218 


v. Le Blanch 


177 


v. Meek 863 


v. Lee 


452, 467 


v. Medbury 37, 674 


v. Lehre 


603, 608, 656 


v. Menaugh 899 


v. Leiber 


887 


v. Merchants' Ins. Co. 725 


v. Leonard 


262 


v. Messenger 623, 814 


v. Lewis 


879, 938 


v. Messmore 389 


v. Linn Co. Court 


167 


v. Metschan 120 


v. Litchfield 


432 


v. Metzger 685, 920 


v. Little 


467 


v. Michel 187 


v. Lock wood 


458 


r. Middleham 435 


v. Loomis 


- 674,877 


v. Mikesell 467 


v. Lonsdale 


611 


v. Miller 119, 209, 212, 268, 496, 547 


v. Losatee 


204 


v. Mills 740 


v. Lowe 


437 


v. Milwaukee Gas Co. 562 


v. Lowhorne 


447 


v. Minnetonka 721 


v. Lowry 


467 


v. Missouri Pac. Ry. Co. 746 


v. Ludwig 


280, 285 


v. Mitchell 499, 574 


v. Lupton 


591 


v. Mobile 804, 806 


v. Lurch 


442 


v. Moffltt 162, 193, 863 


v. Lyles 


237 


v. Monahan 183 


v. Mace 


93, 102 


v. Montana Ry. Co. 845 


v. Mack 


286 


v. Montclair R. Co. 806 


v. Macon Co. Court 


97 


v. Montgomery 322, 573 


v. Main 


177, 878, 881 


v. Mooney 459 


v. Maine Cent. R. R. Co. 394 


v. Moore (Minn.) 900 


v. Manning 


382, 544 


v. Moore (104 N. C.) 555 


v. Mannion 


451 


v. Moore (113 N. C.) 67,885 


v. Mansfield 


458 


v. Moran 900 


v. Marler 


437 


v. Morrill 463, 643 


v. Mario w 


937 


v. Morris 400 


v. Marshall 


882 


v. Morris Co. 174 


v. Martin 


160, 470 


v. Morristown 270 


v. Mason 


922 


v. Mott 282, 883 


v. Mathews 


836 


v. Mounts 202 


v. Matthews 


191, 453 


v. Mrozinski 879 


v. Maxwell 


743 


v. Munchrath 459 


v. Mayhew 


104, 106, 506 


v. Murphy (130 Mo.) 298 


v. Maynard 


129 


v. Murphy (134 Mo.) 297, 298 


v. Mayor, &c. 


262, 299, 893 


v. Murray 894, 932 


v. Mayor of Newark 


394, 562 


v. Myers 882 


v. McAdoo 


372 


v. Myrick 453 


v. McAllister 


893 


v. Nash 162 


v. McBride 


60, 201 


v. Neal 61, 372, 902 


v. McCabe 


604 


v. Ned 467 


v. McCallister 


99 


v. Neff 244 


v. McCann 119, 185, 212, 557 


v. Nelson (26 Ind.) 467 


v. McCarty 


459 


v. Nelson (66 Minn.) 288 


v. McClaugherty 


453,' 482, 509 


v. Nelson (62 Ohio) 845, 880 


v. McConnell 


194, 200 


v. Nelson (19 R. I.) 468, 470 


v. McCracken 


209,211 


v. Nelson County 697 


v. McDaniel 


205, 933 


v. Newark 210, 631, 535, 539, 748, 


v. McDonald 


212 


868 


v. McElroy 


900, 926 


v. Newark (37 N. J. L.) 714 


v. McGeary 


932 


v. Newark (53 N. J. L.) 182 


v. McGinley 


114 


v. Newark (54 N. J. L.) 767 


v. McGinnis 


461 


v. New Brunswick 129 


v. McGuire 


487 


v. New Haven, &c. Co. 165, 836 


v. Mclver 


817 


v. New Orleans 411, 517, 711 


v. McKee 


603 


v. New Orleans & L. R. Co. 284 


v. McKenna 


436 


v. Newton 466 


v. McLellan 


240 


v. Nichols 161 


v. McMahon 


287 


v. Noble 95, 129, 139 


v. McNally 


281 


v. Nolan 436 


v. McNaspy 


41 


v. North 742 



CV1 



TABLE OF CASES. 



Page 




Page 


te v. Northern Central R. R. Co. 138 


State v. Prince 


468, 469 


v. Norvell 467, 470 


v. Pritchard 


468 


v. Norwood 616, 539, 644 


17. Pugh 


183, 248 


v. Noyes (47 Me.) 149, 171, 172, 265, 


v. Purdy 


923, 924, 925 


392, 399, 767, 838, 839 


v. Quarrel 


458 


v. Noyes (87 Wis.) 436 


v. Quick 


452 


v. Ober 449 


v. Quimby 


647 


v. O'Brien 726 


17. Railroad Co. 8" 7, 859 


v. O'Day 929 


v. Kankin 


46, 281, 468 


v. O'Flaherty 382, 436 


17. Ranscher 


888 


v. Ohio O. Co. 880 


17. Ranson 


205, 206 


v. Old 906 


17. Read 


459 


v. Oleson 280 


t7. Redemeier 


437 


v. Olin 914, 923, 942 


17. Redman 


469 


v. Oliver 452 


v. Reed 


467 


v. Omaha C. B. R. & B. Co. 690, 875 


17. Reid 


128, 499 


v. O'Neil 474, 848, 850 


17. Reis 


736 


v. O'Neill 171, 265 


t7. Reynolds 


167, 171, 462 


v. Orange 925 


17. Rice 


464 


v. Orr 288 


17. Rich 


232 


v. Orton 495 


t7. Richards 


694 


v. Orvis 275, 909 


17. Richardson 


40, 467 


v. Osawkee 317, 700 


v. Richland 


530 


v. Osborue 263 


v. Richmond 


392, 496 


v. Oskins 175 


17. Richter 


39 


v. Oswalt 467 


t7. Rickards 


199 


17. Palmer 212 


17. Robart 


291 


v. Parker 163, 165, 170, 172, 469, 742 


17. Robb 


928 


v. Parkinson 104, 183 


17. Robbins 


182, 574 


v. Passaic 516 


i7. Roberts 


283, 447 


v. Paterson (34 N. J.) 294 


v. Robertson 


290 


v. Patterson (45 Vt.) 466 


17. Robinson 


237, 253, 459, 462, 846, 


v Patterson (63 N. C.) 466 




850, 888 


v. Payne 437 


. Robitshek 


288 


v. Peace 464 


v. Roby 


470, 885 


v. Peacock 485 


17. Rockafellow 


438 


v. Pendergrass 486 


t7. Rodman 


935, 936 


v. Pennoyer 560, 887 


v. Rogers 


118, 217, 683, 849, 882 


v. Peoples 657 


i7. Rolle 


710 


17. Perth Amboy 815 


17. Rollins 


62 


v. Peters 161 


t7. Rook 


467 


v. Peterson 195, 454, 690 


17. ROSS 


470 


v. Pettineli 275 


17. Russell 


900 


v. Phalen 400, 410 


v. Rutledge 


923 


v. Philadelphia, &c. R. R. Co. 690 


t7. Ryan 


20, 382, 456 


v. Phillips 689, 911 


t7. Sackett 


459 


v. Phipps 180, 687 


17. Santee 


563, 574 


v. Pierce 118, 915, 940 


t7. Sarradat 


287, 887, 888 


v. Pike 437 


17. Saunders 


449, 452 


v. Piland 624 


t7. Sauvinet 


159 


v. Pillsbury 731 


17. Savannah 


281 


v. Pinckney 530 


v. Saxon 


923 


v. Pittsburg, &c. Co. 686 


v. Scheele 


435 


v. Plainfield 748 


v. Scheve 


667 


t7. Platt 186, 193, 194 


17. Schlemmer 


754, 837, 891 


v. Poison 458 


17. Schlenker 


882 


v. Pond 174, 183 


17. School Board Fund 226 


v. Portage 734 


v. School Dist. 


508, 524 


v. Poston 899 


17. Schoonover 


922 


v. Powder Mfg. Co. 216 


17. Schuman 


669 


v. Powell (77 Miss.) 96, 132, 187 


17. Scott 


166, 181, 587, 760, 876 


v. Powell (58 Ohio) 859 


17. Scougal 


572 


17. Pratt 437, 693 


v. Seavey 


334 


v. Prescott 849 


17. Seay 


177 


v. Price 207 


t7. Seymour 


761, 813 


i7. Prichard 619 


v. Shadle 


209 
bt. 



TABLE OF CASES. 



CV11 



Page 


Page 


State v. Shattuck 496 


State v. Stumpf 929 


v. Shelby 499 


v. Sullivan 543, 894 


v. Shelly 486 


v. Summons 438 


v. Sheppard 290 


v. Sumter Co. 182 


v. Sherod 882 


v. Superior Ct. King Co. 417, 827 


v. Shores 222 


v. Superior Ct. Milwaukee Co. 130 


v. Shumpert 46 


v. Supervisors of Portage 924 


v. Silver 205, 206, 207 


v. Sutfin 469 


v. Simmons Hdwe. Co. 443 


v. Sutterfield 324, 893 


v. Simonds 265 


v. Sutton 895 


v. Simons 144, 163, 602, 505 


. Swearingen 932 


v. Simpson 467 


v. Swift 61, 194, 893 


v. Sioux City O. & W. Ry. Co. 571 


v. Swisher 163, 170 


v. Skirving 909 


v. Switzler 696, 708 


v. Slack 469 


v. Swope 40 


v. Slamon 431 


v. Symonds 99, 372, 902 


v. Slevin 406, 548 


v. Syphrett 656 


v. Smily 606 


v. Taft 290 


v. Smith (1 Bailey) 161 


v. Tait 462 


v. Smith (35 Minn.) 205 


v. Tally 464 


v. Smith (53 Mo.) 437 


v. Tappan 309, 333, 338, 702, 703 


v. Smith (90 Mo.) 453 


v. Taylor 462, 931 


v. Smith (35 Neb.) 159 


v. Telephone Co. 13 


v. Smith (44 Ohio) 185, 194, 240, 334 


v. Tenant 291 


v. Smith (44 Tex.) 217 


v. Thierault 880 


v. Smith (14 Wis.) 894,932 


v. Thomas (47 Conn.) 451 


v. Smyth 882 


v. Thomas (64 N. C.) 450 


v. Snow 246, 431, 465, 888 


v. Thomas (25 Mont.) 183 


v. Snowman 879 


v. Thompson .. 97, 164 


i\ Somer's Point 183 


v. Thome 134 


v. South Carolina R. R. Co. 707 


v. Thornton 466 


v. South Kingston 190 


v. Thorson (54 


v. Spier 467, 469 


v. Thurston 216 


v. Spokane 120 


v. Tiedemann 262 


v. Sponangle 748 


v. Tim me 60 


v. Springer 336 


v. Tipton 453 


v. Squires 182, 209, 213, 529, 543 


v. Tisdale 464 


v. Staley 445 


v. Toledo 697 


v. Standard Oil Co. 179, 180, 253, 443 


v. Tombeckbee Bank 392, 414 


v. Stanley 159 


v. Tooker 96, 900 


v. Stark 884 


v. Tools 39 


v. Starling 437 


v. Topeka 279, 881 


v. State Canvassers 935, 936 


v. Towle 496 


v. State Med. Ex. Board 890 


v. Traders' Bank 236 


v. Staten 99, 162, 240, 370, 502, 505, 


v. Travellers' Ins. Co. 705 


509, 519 


v. Treasurer 217 


v. Steers 935 


v. Trenton 183, 789 


v. Sterling 400 


v. Trenton (51 N. J. L.) 293 


v. Stewart 41, 183, 458, 778 


v. Trenton (53 N. J. L.) 298 


v. St. Joseph 931 


v. Trenton (61 N. J. L.) 713 


v. St. Louis 893 


v. Trenton Pass. Ry. Co. 803 


v. St. Louis (145 Mo.) 804 


v. Trumpf 932 


v. St. Louis (161 Mo.) 298 


v. Trustees of Union 167 


v. St. Louis, &c. Ry. Co. 630 


v. Tucker 182 


v. St. Louis Cathedral 210 


v. Tuckman 730 


v. St. Louis Co. Court 345 


v. Tufly 60, 214, 892 


v. Stone 458 


v. Tugwell 646 


v. Stone (118 Mo.) 886 


v. Turner 577 


v. Stone (120 Mo.) 162 


v. Tuttle 247, 902, 937 


v. Stout 716 


v. Underwood 177 


v. Strauder 437 


v. Union 206, 207, 531, 535 


v. Strauss 885 


v. Vaigneur 447 


v. Street Commissioners 883 


v. Vail 591, 932 


v. Stripling 876 


v. Van Baumbach 388 


v. Stucker 846 


v. Van Beek 894 


v. Studt 217 


v. Vanderbilt 263 



cvm 



TABLE OF CASES. 



Page 

State v. Vanderpool 41 

v. Vandersluis 887, 890 

v. Van Home 167 

v. Vansant 452 

v. Virginia & T. Ry. Co. 693 

v. Wabash, &c. Ry. Co. 843 

v. Wagener (69 Minn.) 887 

v. Wagener (74 Minn.) 456 

v. Wagener (77 Minn.) 661, 569, 886, 

887 

v. Walker 205, 469 

v. Wall 593 

v. Walsh (62 Conn.) 923 

v. Walsh (136 Mo.) 182 

v. Wapello Co. 318, 325 

v. Ward 449, 468, 469 

v. Warford 215 

v. Warmoth 162 

v. Warren 540, 574, 937 

v. Washington 469 

v. Watson 911 

v. Webber 261 

v. Webster 890 

v. Weir 163, 171, 173 

v. Welch 281, 285 

v. Wendler 194, 218 

v. Wentworth 449 

v. West 436 

v. Western U. Tel. Co. 853 

v. Weston 121, 895 

v. Wheeler 247, 846, 849, 850 

v. Wheelock 848 

v. Whisner 221 

v. Whitaker (48 La. Ann.) 471, 474 
v. Whitaker (160 Mo.) 845,880 

v. Whitcomb 162 

v. White 184, 453, 658, 665 

v. Whitworth 86 

v. Wiggin 693 

v. Wilburn 499 

v. Wilcox 163, 166, 167, 170, 174, 265 
v. Wilkesville 330 

v. Wilkinson 464 

v. Williams 99, 286, 878, 382, 431, 

917 

r. Williams (68 Conn.) 244, 269, 340 
v. Williams (18 Wash) 437 

v. Willingham 858 

v. Wilmington City Council 895 

v. Wilson 183, 382, 895, 935 

v. Wilson (61 Kan.) 887 

v. Wiltz 389, 451 

v. Winkelmeier 893 

v. Winters 687 

v. Winton 482 

v. Wiseman 469 

r. Witham 449 

v. Wolfer 674 

v. Wollem 930 

v. Woodfin 453 

v. Woodmansie 672 

v. Woodruff 68 

v. Woodruff, &c. Co. 689 

v. Woodson 129 

v. Woodward 120, 400 

v. Worden 458 



State v. Workman 879 

v. Wright 188, 216, 547 

v. Wrightson 894 

v. Wurts 61 

v. Yard ley 408 

v. Young 144, 207, 212, 213, 909 

v. Young (31 Fla.) 592 

v. Zeno 886 

v. Zophy 690 

State Auditor v. Jackson Co. 113 

State Bank v. Curran 895 

v. Knoop 85 

State Board v. Central R. R. Co. 706 

State Board of Tax Com'rs v. Holli- 

day 739 

State Census, In re 74 

State Center v. Barenstein 284 

State Freight Tax Case 688 

Staten Island Trans. Co., Matter of 764, 

780 

State Prison v. Day 389 

State Railroad Tax Cases 706 

State Tax on Foreign-Held Bonds 693, 

694, 695, 720 

State Tonnage Tax Cases 691 

State Treasurer v. Auditor General 706, 

720 

Stay ton v. Rulings 114 

St. Charles v. Nolle 720 

St. Clair v. Cox 42, 856 

Steamship Co. v. Jolliffe 858 

v. Port Wardens 691 

Stearns v. Barre 164, 753, 778, 815 

v. Gittings 521, 522, 524 

v. Minnesota 396, 739 

Stebbins v. Com'rs Pueblo Co. 136 

v. Jennings 278 

Steck v. Colorado F. & I. Co. 590 

Steckert v. East Saginaw 201 

Steele v. Boston 301 

v. Calhoun 911, 930 

v. County Com'rs 765 

v. Gellatly 614 

v. Smith 43 

v. Southwick 606, 607 

v. Spruance 653 

Steenerson v. Great N. Ry. Co. 873 

Stein v. Bienville Water S. Co. 565 

v. Burden 757 

v. Mobile 167, 404 

Steinecke i?. Marx 629 

Steiner v. Ray 882 

Steines v. Franklin Co. 324 

Steinman, Ex parte 482, 509 

Steketee v. Kimm 606 

Stemper v. Higgins 930, 940 

Stensoff v. State 894 

Stephens v. People ( ,*08 

Stephenson v. Bd. of El. Com'rs 899 

Sterling v. Jackson 808 

v. Jugenheimer 605 

Sterling's Appeal 791 

Sternberger r. Railroad Co. 875 

Stetson v. Kempton 266, 327, 749 

Stettinus v. United States 464 

Steuart v. Baltimore 691 



TABLE OF CASES. 



C1X 



Page 

Stevens v. Andrews 414 

v. Middlesex Canal 777 

v. Muskegon 300 

v. Paterson, &c. R. R. Co. 786 

v. Rutland, &c. R. R. Co. 394 

r. Sampson 637 

v. State 437, 509 

Stevenson v. Colgan 255 

v. Lexington 301 

v. School Directors 262 

Steward t;. Jefferson 166 

Stewart v. Blaine 191 

v. Clinton 304, 783 

v. Father Mathew Society 212 

v. Griffith 146 

v. Hartman 765 

v. Hunter 506 

v. New Orleans 357 

v. Peyton 936 

v. Potts 709 

17. Riopell 205 

v. Ripon 363 

v. Stewart 42 

v. Supervisors of Polk Co. 167 

v. Swift Spec. Co. 606 

v. Trevor 712 

v. W. & L. E. Ry. Co. 28 

Stewarts' Application 758, 768 

Sticknoth's Estate 538, 541 

Stiefel v. Maryland Inst. 212 

Stiles v. Nokes 637, 639 

Stiltz v. Indianapolis 721 

Stilwell v. Kellogg 590 

Stine v. Bennett 224 

Stingle v. Nevel 217 

Stinson v. Smith 220 

Stipp v. Brown 521 

Stirling v. Winter 522 

Stitzell 17. Reynolds 605 

St. Johnsbury v. Thompson 279, 284 

St. Joseph v. Anthony 717 

r. Ernst 709 

r. O'Donohue 717, 730 

v. Rogers 320, 321 

St. Joseph & Gr. Is. Ry. Co. v. 

Palmer 853 
St. Joseph, &c. R. R. Co. v. Bu- 
chanan County Court 99, 167 
v. Callender 
St. Louis v. Alexander 
v. Allen 



761 
167 

266, 270 
271 

279, 280, 287 
710 
266, 279, 280, 859 



v. Bell Tel. Co. 

v. Bentz 

r. Bowler 

v. Cafferata 

. Consol. Coal Co. 

v. Dorr 267, 278 

r. Foster 118 

v. Goebel 281 

17. Green . 285 

v. Gurno 296 

v. Heitzeberg P. & P. Co. 289, 883 

v. Hill 572, 787 

v. Knox 282 

v. Oeters 737 



v. Russell 



265, 266, 268, 347 



St. Louis v. Russell (116 Mo.) 293 

t?. Sclmuckelberg 883 

v. Schoenbusch 280 

v. Shields 182 

v. Spiepel 287 

v. St. Louis R. R. Co. 287 

v. Tiefel 204, 207 

v. Weber 279, 281, 282, 284 

17. Western U. Tel. Co. 297, 689 

St. Louis, A. & T. Ry. Co. v. Fire Ass'n 180 
v. Henderson 827 

St. Louis, H. & K. C. Ry. Co. v. 

Hannibal U. 1). Co. 758 

St. Louis Iron M. & S. Ry. Co. v. Paul 1 5 

v. Petty 766, 767, 778 

v. Worthen 708 

St. Louis & S. F. R. R. ' Co. v. 

Evans, &c. Brick Co. 817 

17. Foltz 763, 777 

v. Gill 397, 872, 873, 875 

v. Matthews 16, 841, 842 

St. Louis, &c. Co. v. Harbine 407 

St. Louis, &c. R. R. Co. v. Clark 89 

v. Loftin 396 

v. Richardson 823 

r. Teters 761 

17. Vickers 25 

St. Louis, I. M., &c. Co. v. Berry 397 

v. McCormick 181 

St. Mary's Industrial School v. Brown 698 

Stock v. Boston 362 

v. Jefferson 783 

Stockard v. Morgan 689 

Stockbridge v. West Stockbridge 277 

Stockdale v. Hansard 193, 651 

17. State 499 

Stocking v. Hunt 406, 410, 516 

u. State 237, 253, 465 

Stockton 17. Powell 200, 864 

v. Whitmore 766 

Stockton, &c. R. R. Co. v. Stockton 167 

Stockwell u. White Lake 692 

Stoddard v. Martin 924 

Stoddart v. Smith 237 

Stokes, In re 495 

u. New York 286 

v. People 382 

v. Scott Co. 318 

Stone v. Basset 413 

v. Charlestown 265, 268 

v. Cooper 607 

v. Dana 430 

17. Graves 859 

v. Inh. of Heath 825 

v. Mississippi 176, 400, 885 

v. New York 757 

v. School District 275 

Stoner v. Flournoy 722 

Stoney v. Life Ins. Co. 321 

Storey v. Challands 611 

v. People 454, 643 

v. Wallace 637 

Stork v. Philadelphia 826 

Storrie v. Houston City St. Ry. Co. 861 

Storrs v. Utica 362 

Storti, Re 473 



ex 



TABLE OF CASES. 



Storti v. Com. 375 

Story v. Furnam 406, 407 

v. New York Elevated Railway 

Co. 799 

Story's Case 799, 800 

Stoughton v. State 867 

Stout v. Hyatt 54 

v. Keyes 521 

v. Martin 751 

Stoutenburg v. Frazier 425, 478 

Stover v. People 449 

Stow v. Wise 275, 449 

Stowell v. Lord Zouch 91 

Stowers v. Postal Telph. Co. 801, 804 

St. Paul v. Coulter 292 

v. Gilfillan 883 

v. Seitz 362 

v. Smith 285 

v. Traeger 281, 285, 291 

v. Umstetter 129 

?>. Chicago M. & St. P. Ry. Co. 298 

St. Paul Gas Light Co. v. St. Paul 405 

St. Paul M. & M. Ry. Co. v. Pbelps 105 

p. Minneapolis 807 

v. Todd Co. 396 

St. Paul & N. P. Ry. Co., In re 756, 775, 

778 

St. Paul, &c. R. R. Co. i>. Gardner 689 
v. Parcher 396 

St. Paul Un. Depot Co. v. St. Paul 807 
Strader v. Graham 64 

Strafford v. Sharon 617 

Strahl, Ex parte 495 

Strang, Ex parte 897, 928 

Strait v. Strait 680 

Stratton v. Collins 711, 739, 750 

Strauch v. Shoemaker 630 

Strauder v. West Virginia 19, 655, 559 
Strauss v. Heiss 218 

v. Meyer 630, 647 

v. Pontiac 291 

Street v. New Orleans 346 

Street Railroad Co. v. Morrow 531, 694, 

738 

Street Railway v. Cumminsville 785, 797, 

802 

Streety v. Wood 619, 620 

Streight v. Durham 712 

Streitwolf v. Streitwolf 44, 679 

Streubel v. Milwaukee, &c. R. R. Co. 617 
Striker v. Kelley 114 

Stringfellow v. State 446 

Strode v. Washer 626 

Stroebel v. Whitney 606 

Strong v. Clem 614 

v. Daniel 259 

v. State 376, 378 

Strosser v. Fort Wayne 642 

Stroud v. Philadelphia 736, 861 

Strout v. Proctor 482 

Struthers v. Phila. & D. C. Ry. Co. 827 
v. R. R. Co. 791 

Stryker v. Goodnow 33 

St. Tammany Water Works v. New 

Orleans Water Works 383, 402 

Stuart 17. Blair 896 



Page 

Stuart v. Clark 8til 

v. Commonwealth 470 

v. Hamilton 93 

v. Kinsella 209, 213 

v. Laird 103, lUo 

v. Mechanics', &c. Bank 693 

v. Palmer 722 

v. School District 261 

v. Warren 642 

Stubbs v. Lea 895 

Stump c. Hornback 653 

Stupp, Re 495 

Sturdevant v. Norm 614 

Sturgeon v. Kitchens 209 

v. Korte 908 

Sturges i7. Carter 631, 738 

i;. Crowinshield 45, 89, 407, 409, 416, 

449 

Sturgis v. Hull 629 

v. Spofford 645 

Sturm v. Fleming 622 

Sturoc's Case 643 

Sturtevant v. State 497 

Stutsman Co. v. Wallace 32 

Stuyvesant v. New York 278, 843 

Sublett v. Bedwell 895, 932 

Suburban R. T. Co. v. New York 

(128N. Y.) 806 

v. New York (135 N. Y.) 758 

Succession of Lanzetti 208 

Succession of Tanner 129 

Succession of Townsend 681 

Sue, The 840 

Suesenbach v. Wagner 40 

Suffolk Witches, Case of 444 

Sullings 17. Shakespeare 658 

Sullivan v. Adams 257 

v. Blackwell 585 

17. Haug 672 

v. Oneida 282, 382, 431, 437 

Sully v. Am. Natl. Bk. 30, 38 

Sultan, Re 41 

Summer v. Mitchell 

Summers v. Com'rs Daviess Co. 305 

Summerville v. Pressley 837 

Summons v. State 451 

Sumner v. Beeler 259 

17. Buel 608 

v. Hicks 33 

v. Miller 616 

Sunberg 17. Babcock 607 

Sunbury & Erie R. R. Co. v. Cooper 258 

v. Hummel 786 

Sunderlin v. Bradstreet 611 

Sun Mutual Ins. Co. v. Board of 

Liquidation 262 

t7. New York 204, 255 

Sun P. & P. Ass'n v. New York 318, &M 

Supervisors v. Davis 940 

t7. People 195, 208 

v. United States 33 

17. Wisconsin Cent. R. R. Co. 631 

Supervisors, &c. v. Keenan 194 

u. People 208 

Supervisors of Doddridge v. Stout 120, 

760 



TABLE OF CASES. 



CXI 



Page 

Supervisors of Du Page v. People 9'29 
Supervisors of Election 130, 133 

Supervisors of Iroquois v. Keady 224 
Supervisors of Jackson v. Brush 294, 324 
Supervisors of Knox Co. v. Davis 246 
Supervisors of Sadsbury v. Dennis 336 
Supervisors of Schuyler Co. v. Peo- 
ple 200, 201 
Surgett v. Lapice 104 
Susquelianna Canal Co. v. Wright 786 
Susquehanna Depot v. Barry 332 
v. Simmons 362 
Sutherland v. De Leon 615 
Sutliff v. Board of Com'rs 320, 322, 323 
Sutton v. Asken 514 
v. Board 355 
v. State 478 
v. State (96 Tenn.) 556 
v. Tiller 764 
Sutton Hospital, Case of 278 
Sutton's Heirs v. Louisville 823, 824 
Suydam v. Moore 836, 842 
v. Williamson 33, 34, 144 
Suydham v. Broadnax 417 
Swain v. McRae 937 
v. Mizner 435 
Swan v. Williams 54, 755, 777 
Swann, Ex parte 473 
v. Buck 118, 194, 217 
Swan Point Cera. v. Tripp 741 
Swanson v. Ottumwa 272 
Swart v. Kimball 458, 459 
Swartwout v. Railroad Co. 216 
Swayze v. Hull 198 
Swearingen, Ex parte 40 
Sweeney r. Baker 624, 628 
v. Chicago, &c. Ry. Co. 865 
v. Hunter 408 
v. McLeod 198 
Sweet v. Rechel 754, 770, 814 
Swepston v. Barton 929, 932 
Swift v. Calnan 841 
v. Fletcher 406 
v. Newport 720 
v. People 671 
v. Sutphin 854 
v. Tousey 62 
v. Tyson 35, 130 
v. United States 106 
v. Williamsburg 273, 324 
Swift's Estate, Re 709 
Swindle v. Brooks 647 
Swindell v. State 187 
Sydnor v. Palmer 138 
Symonds v. Carter 607 
o. Clay Co. 355 
Synod of Dakota v. State 664 
Syracuse Bank v. Davis 531, 636 
Syracuse W. Co. v. Syracuse 297, 383, 

393 



T. 



Tabor v. Cook 
Tacoma v. Kreech 
v. State 



590 
292 
762 



Page 

Tafoya v. Garcia 217 
Taft v. Adams 389 
Taggart v. Claypole 671 
Tainter v. Worcester 274, 301 
Tait's Exec. v. Central Lunatic Asy- 
lum 398, 777 
Talbot v. Dent 167, 313 
v. Fidelity & C. Co. 179 
v. Hudson 253, 697, 770, 815 
v. Talbot 614 
v. Taunton 363 
Talcott v. Philbrick 923 
Talkington v. Turner 917 
Tallman v. Janesville 540, 545 
Tampa, St. R. & P. Co. v. Tampa S. 

Ry. Co. 595 

Tanner v. Albion 265, 883 

v. Alliance 860 

Tappan v. School District 262 

Tarble's Case 26, 494 

Tarbox v. Sughrue 922, 932, 933 

Tarleton v. Baker 924 

Tarlton v. Fisher 192 

v. Peggs 221 

Tarpley v. Hamer 406 

Tash v. Adams 310 

Tate v. Bell 254 

v. Greensboro 298 

v. Railroad Co. 304 

v. Stooltzfoos 638 

Tate's Executors v. Bell 237, 254 

Taunton v. Taylor 853 

Tayloe, Ex parte 438 

Taylor v. Beckham (Ky.) 64, 74 

v. Beckham (178 U. S.) 509 

v. Bleakeley 900 

v. Boyd 716, 730 

v. Chambers 80 

w. Church 611 

v. Commissioners of Ross Co. 242, 

249 

v. Commonwealth 159 

v. Cumberland 801 

v. French 87 

t7. Hall 606 

v. Hawkins 647, 649 

v. Marcy 814, 816 

v. McCracken 83 

v. Miles 627 

v. Nashville, &c. R. R. Co. 764 

r. Newberne 167 

17. Peckham 303 

t7. Penn. Co. 181 

17. Place 132, 137, 162 

v. Plymouth 767 
v. Porter 128, 134,. 503, 508, 754, 765 

v. Sample 614 

17. Skrine 898 

v. State 469, 886 

v. Stearns 414 

t7. St. Louis 29(3 
t7. Taylor 101, 892, 929, 930, 935, 037 

v. Thompson 331 

v. Wilson 218 

v. Ypsilanti 33 

Tebbe v. Smith 911, 929 



CX11 



TABLE OF CASES. 



Tecumseh v. Phillips 212 

Teel v. Yancey 138 

Teft v. Teft 154, 558 

Telefson v. Fee 23 

Telegram M. Co. v. Com. 455 

Telegraph Co. v. Texas 689 

Templar v. Examining Bd. of Bar- 
bers 889 
Temple v. Mead 123, 911, 912 
Templeton v. Linn Co. 68 
Ten Eyck . D. & R. Canal 316, 764 
Tennessee v. Davis 20, 24, 26, 29 
v. Sneed 406 
. Whitworth 397 
Tennessee, &c. R. R. Co. v. Adams 789 
v. Moore 162 
Tenney v. Lenz 284 
Tenney's Case 643 
Terre Haute v. Evansville & T. H. 

Ry. Co. 159, 758 

v. Hudnut 302 

Terre Haute, &c. R. R. Co. v. Bissell 786, 

791, 797 

r. McKinley 826 

Terrett v. Taylor 234, 244, 343, 386, 391 

Terrill v. Rankin 517 

Territorial Ins. Asylum v. Wolfley 162 

Territory v. Ah Lim 572 

v. Connell 845 

v. Daniels 726 

v. Evans 879 

v. Guyot 849 

v. Ketehum 473 

P. O'Connor 174, 194, 849, 851 

v. Pyle 389 

v. Richardson 160 

v. Romine 459 

v. School District 183 

v. Scott 165 

v. Stewart 165 

Terry, Ex parte 455 

v. Anderson 623 

v. Bright 607 

v. Fellows 627, 629, 637, 639, 647 

Teutonia Ins. Co. v. O'Connor 288 

Texas v. White 8, 8, 11, 45, 63 

Texas & P. Ry. Co. v. Rosedale, &c. 

Co. 794 

v. So. Pac. Ry. Co. 30, 44 

Texas & St. L. Ry. Co. v. Cella 825 

Texas B. & I. Co. v. State 710 

Texas, Mex. Ry. Co. v. Locke 409 

Texas W. Ry. Co. v. Cave 826 

Thacker v. Hawk 564 

Thames Bank v. Lovell 865 

Thames Manuf. Co. v. Lathrop 114, 545, 

712 

Tharp v. Fleming 149 

Thatcher v. Powell 33 

Theobold v. Louisville, &c. Ry. Co. 791, 

802 

Theresa Drainage Dist., Re 762, 770 

The Slave Grace "422 

Tliien v. Voegtlander 772 

Thieson v. McDavid 280 

Third Cong. Soc. v. Springfield 740 



Page 
Third Nat. Bk. v. Divine Grocery 

Co. 880 

Third Nat. Bank of Louisville v. 

Stone 682 

Thistle v. Frostbury Coal Co. 407 

Thomas's Appeal 252 

Thomas, Ex parte 093 

v. Board of Commissioners 182 

v. Collins 218, 529 

v. Croswell 629 

v. Dakin 278 

v. Dunnaway 608 

v. Gain 712, 729, 736 

v. Hubbell 82 

v. Leland 338, 340, 543, 679, 735 

v. Mason 696 

v. Owens 99 

v. People 455 

v. Railroad Co. 52 

v. Richmond 274, 320 

v. Scott 225, 530 

v. State 685 

v. Stickle 751 

v. Wabash, St. Louis & P. Ry. 

Co. 211 

Thorn ason v. Ruggles 60 

Thomasson v. State 845 

Thompson, Ex parte 495, 547 

v. Alexander 629 

v. Bunton 14 

v. Caldwell 622 

v. Carr 370 

v. Circuit Judge 935 

v. Commonwealth 410, 447 

v. Luverne 213 

v. Missouri 382 

v. Morgan 637, 640 

. Pacific R. R. Co. 682 

v. Pittston 311, 333 

v. Read 522 

v. Reed 522 

v. Schermerhorn 294 

v. State 447, 679, 684 

r. Steamboat Morton 676 

v. Taylor 43 

v. United States 469 

v. Utah 374, 453, 458 

v. Waters 178, 180 

v. Whitman 42, 43 

Thomson v. Booneville 294 

v. Lee Co. 167, 320, 542 

v. Grand Gulf R. R. Co. 246 

Thomson-Houston El. Co. v. Simon 762 

Thorington v. Montgomery 4(5 

v. Smith 412 

Thorn v. Blanchard 618 

Thorndike v. Camden 308 

Thorndyke v. Boston 904 

Thome v. Cramer 163 

Thornton v. McGrath 629 

v. Territory 174 

v. Turner 517, 523 

Thorpe v. Rutland & Burlington R. R. 

Co. 128, 176, 316, 396, 399, 831, 834, 

841, 843 
Thrap v. Fleming 149 



TABLE OF CASES. 



CXU1 



Threadgill v. Railroad Co. 898 

Thrift v. Elizabeth City 279 

Throop v. Langdon 895 

Thunder Bay, &c. Co. v. Speedily 807, 865 

Thurber v. Blackbourne 42 

Tliursfield v. Jones 361 

Thurston v. Little 749 

v. St. Joseph 304 

v. Thurston 80, 146 

Thweatt v. Bank 544 

v. Howard 751 

Tide-water Canal Co. v. Archer 822, 823 

Tide Water Co. v. Costar 704, 706 

Tiernan v. Rinker 250, 687, 688, 846, 858 

Tierney v. Tierney 156 

Tiffany v. Stewart 82 

v. U. S. 111. Co. 787 

Tift v. Griffin 626, 585 

Tildon v. Blair 834 

Tillinghast v. Can- 193 

Tillman v. Arlles 458 

v. Cocke 132, 249 

v. Shackleton 95 

Tillson v. Robbins 629 

Tilton v. Swift 531 

Timm v. Harrison 208 

Tims v. State 257, 454 

Tindal v. Wesley 24 

Tindley v. Salem 305 

Tingue v. Port Chester 205 

Tinicum Fishing Co. v. Carter 781 

Tinkler v. Cox 52 

Tinsley v. Anderson 15, 21, 453, 493 
Tinsman v. Belvidere & Del. R. R. 

Co. 316, 786 
Tioga R. R. Co. v. Blossburg, &c. 

R. R. Co. 80 

Tipton, Re 194 

v. Locomotive Works 564 

v. Tipton 579 

Title Guaranty Co. v. Wrenn 556 

Titus v. Boston 808 

Titusville Iron Works v. Keystone 

Oil Co. 136, 200 

Tod, Ex parte 39 

v. Wick 13 

Todd v. Birdsall 348 

v. Election Com'rs 900 

v. Hawkins 611 

v. Kankakee, &c. R. R. Co. 825 

v. Kerr 679, 580 

v. Munson 478 

v. Rough 605 

v. Troy 362 

Toffey v. Atcheson 413 

Toledo v. Cone 306 

Toledo, &c. R. R. Co. v. Deacon 836 

v. East Saginaw, &c. Co. 766 

v. Jacksonville 285, 400, 843 

Toledo, &c. Ry. Co. v. Detroit 806 

v. Munson 825 

Toledo Bank v. Bond 395 

Tolen v. Tolen 679 

Toll v. Wright 621 

Tomlin v. Dubuque, &c. R. R. Co. 394, 

786 



Page 

Tomlinson v. Branch 394 

v. Indianapolis 297 

v. Jessup 394 

Tonawanda v. Lyon 714 

Tonawanda R. R. Co. v. Hunger 788, 842 

Tong v. Marvin 95, 513 

Toogood v. Spyring 647, 648 

Tool Company v. Norris 198 

Topeka v. Boutwell 288 

Torbush v. Norwich 301 

Toronto, &c. R. Co. v. Crookshank 237 

Torrey v. Corliss 529 

. Field 631, 637, 647 

v. Milbury 112, 749 

Touchard v. Touchard 360 

Tourne v. Lee 884 

Towanda Bridge Co., Re 758, 759 

Tower v. Lamb 688 

Towle v. Brown 269 

v. Eastern Railroad 516, 528 

v. Forney 146 

r. Marrett 217 

Towler v. Chatterton 525 

Town of Pawlet v. Clark 343, 386, 391 

Townsend v. Des Moines 363 

v. Griffin 156, 585 

v. Kendall 684 

v. State 880 

v. Todd 47 

v. Townsend 114 

Trabue v. Mays 606 

Tracy v. Elizabethtown, &c. R. R. Co. 778 

Trade-mark Cases 11 

Tragesser v. Gray 848, 885, 889 

Train v. Boston Disinfecting Co. 688, 854 

Trainor v. Wayne Co. Aud. 159 

Trammell v. Russellville 306 

Transportation Co. v. Chicago 510, 781, 

782 

v. Parkersburg 691 

v. Wheeling 691 

Travellers' Ins. Co. v. Brouse 413 

r. Connecticut 706 

v. Frick 179 

v. Johnson City 323 

Traver v. Merrick Co. 700 

Tray hern v. Colburn 83 

Traylor v. Lide 682 

Tread way o. Schnauber 64 

Treat v. Lord 862, 863 

Treat Mfg. Co. v. Standard Steel & 

I. Co. 590 

Tredway v. Railway Co. 841 

Tremain v. Cohoes Co. 786 

Trenton Water P. Co. v. Roff 786 

Trestor v. Missouri P. R. Co. 763 

Trevett v. Weeden 55, 229 

Trevino v. Trevino 579 

Trice v. Hannibal, &c. R. R. Co. 
Trigally v. Memphis 265 

Trim v. Macpherson 

Trimble v. Anderson 606 

v. Foster 606 

Trinitarian Cong. Soc. v. Union Cong. 

Soc. 660 

Trinity & S. Ry. Co. v. Meadows 809, 812 



CX1V 



TABLE OF CASES. 



Tripp v. Goff 202 

v. Overocker 817 

v. Santa Rosa St. Ry. Co. 27 

Trist P. Child 198 

Troia, Matter of 439 

Trombley v. Auditor-General 765, 756 

Troppman, Trial of 442 

Trott v. Warren 277 

Troup v. Haight 104 

Trowbridge v. Spinning 44 

Troy v. Winters 286 

Troy & Boston R. R. Co. v. Lee 823 

v. Northern Turnpike Co. 785 

Truchelut v. Charleston 642 

True v. Davis 267 

v. Plumley 606 

Truehart v. Addicks 929 

Truman v. Taylor 607 

Trussell v. Scarlett 611 

Trustees v. Bailey 132, 138, 560 

v. Davenport 722 

v. McCaughy 615, 531, 536 

v. McConnell 743 

v. Schroeder 305 

Trustees of Atlanta University v. 

Atlanta 758, 762 

Trustees of Cass v. Dillon 330 

Trustees of Erie Academy v. Erie 267 
Trustees First M. E. Ch. v. Atlanta 669, 

741 

Trustees of Griswold College v. State 741 
Trustees of Kentucky F. O. S. v. 

Louisville 741 

Trustees of M. E. Church v. Ellis 740 
Trustees of Paris v. Cherry 167 

Trustees of Richmond Co. Academy 

v. Augusta 720 

Trustees of Schools v. Tatman 266, 268, 

339, 345, 389 

Trustees of University v. Mclver 60 

Trustees of Vincennes University 

v. Indiana 392 

Trustees of W. & E. Canal v. Spears 786 
Trustees, &c. v. Auburn & Rochester 

R. R. Co. 316, 806 

v. Bailey 132 

v. Champaign Co. 695 

v. Shoemaker 167 

Tuckahoe Canal Co. v. Railroad Co. 662, 

665, 757 

Tucker v. Aiken 898, 928 

v. Harris 374 

v. Magee 486 

v. Virginia City 272, 312 

Tucker et /., Trials of 476 

Tuaman . Chicago 265, 282, 288 

Toiler, In re 86, 529 

Tullis v. Fleming 39 

v. Lake Erie & W. Ry. Co. 15, 34 

Tally, Ex parte 619 

Tuolumne Redemption Co. v. Sedg- 

wick 411 

Turin-vine v. Stampe 831 

Turley v. Logan Co. 193 

Turlock Irrig. Dist. v. Williams 736 

Turnbull v. Giddings 191 



Page 

Turner, Ex parte 18 

Matter of 423 

v. Com'rs 247 

p. Com'rs of Wilkes Co. 31, 36 

v. Malone 586 

p. Maryland 687, 854 

v. Newburgh 362 

v. New York 524 

p. Richardson 30 

v. State 376, 687, 889 

p. Thompson 680 

Turnpike v. Champney 927 

Turnpike Co. v. News Co. 770 

v. Davidson Co. 392 

v. People 85 

v. State 549 

p. Union R. R. Co. 399 

p. Wallace 316 

Tuscaloosa Bridge Co. v. Olmsted 209, 

213, 216 

Tuthill, Re 735, 768 

Tuttle v. Cary 275 

v. Justice of Knox Co. 814 

v. Strout 207 

Twambly v. Henley 82 

Twenty -second Street, In re 398, 758 

Twitchell v. Commonwealth 46 

Tyler, Ex parte 24, 27 

Tyler . Beacher 705, 765, 773, 775 

v. Board of Registration 134, 508, 582 

v. Judges of Registration 608 

v. People 177, 237, 253 

P. Tyler 85 

Tyrone Sch. Disk, Appeal of 807 

Tyson, In re 381 

Tyson, Re (13 Col.) 375 

v. School Directors 243, 311 332, 

333, 630, 697, 701 

Tyzee P. Commonwealth 458 



u. 



Uhrig v. St. Louis 728 

Uffert v. Vogt 182 

Ulman v. Baltimore 730 

Uline P. N. Y., &c. R. R. Co. 783, 786 

Ullery v. Commonwealth 438 

Umlauf v. Umlauf 83 

Underbill v. Manchester 346 

v. Welton 606, 607 

Underwood, Matter of 495 

v. Lily 633, 638, 541 

p. McDuffee 589 

p. McVeigh 581 

p. Wood 696 

Ungericht p. State 859 

Union p. Durkes 304 

Union Bank v. Com'rs of Oxford Co. 196 

. Hill 684 

P. State 62 

Union C. Life Ins. Co. v. Chowning 671 

Union El. Co. v. Kansas City S. B. 

Ry. Co. 828 

Union Ferry Co., Matter of, 564, 757, 

775, 777 



TABLE OF CASES. 



CXV 



Page 

Union Imp. Co. v. Commonwealth 394 
Union Ins. Co. v. Hoge 104 

Union Iron Co. v. Pierce 136, 407, 544 
Union Pac. Ry. Co. v. Botsford 424 

Union Pac. R. R. Co. v. United States 105 
Union Railway Co. v. Cambridge 285 
Union Hef. Trail. Co. v. Lynch 691 

Union R. R. Co. v. Traube 80 

Union Savings Bank v. Taber 522 

Union Trust Co. v. Durfee 709 

Union Water P. Co. v. Auburn 719 

United Cos. v. Weldon 406 

United N. J. Ry. & C. Co. v. Natl. 

Docks, &c. 806 

United States, Matter of Petition of 756 
. Ala. G. S. Ry. Co. 104 

r. Alexander 783 

v. Ames 177 

v. Aredondo 25 

v. Barney 48 

v. Barr 217 

v. Battiste 464 

v. Bellingham Bay, &c. 862 

v. Benner 450 

v. Brown 237 

v. Callendar 480, 613 

v. Cashiel 468 

v. Cathcart 11 

v. Claflin 217 

v. Conway 410 

v. Coolidge 48 

v. Cooper 613, 768 

v. Cornell 177 

v. Cox 444 

v. Cruikshank 14, 19, 38, 418, 423, 
498, 568, 832, 922 

v. Dallas M. R. Co. 524 

v. Davenport 470 

v. DeWalt 436 

v. DeWitt 11, 831 

v. Fisher 89, 98 

v. Forty-three Gallons of Whisky 851 
v. Fox 181, 440 

v. French 493 

v. Gale 251 

v. Gettysburg E. Ry. 756, 758, 778, 

780 

v. Gilmore 104 

v. Goldman 901 

v. Greathouse 464 

v. Guiteau 177 

. Hamilton 438 

v. Harris 18..777 

v. Hartwell 388 

v. Has well 613 

v. Hoar 524 

v. Hudson 48, 453, 613 

v. Hunter 433 

v. Jailer of Fayette 492 

v. .Joint-Traffic Ass'n 687 

v. Jones 438, 754, 756, 817 

v. Kagama 177 

p. Lancaster 48 

v. Lee 24 

r. Little 450 

v. Lynch 30 



Page 

United States v. Lyon 613 

t. Mann 34 

v. Marble 73 

v. Marigold 46 

r. McComb 451 

v. McKee 160 

t7. Minn., &c. R. R. Co. 813 

v. More 462 

v. Morris 464 

r. Morrison 33 

v. Nashville, &c. Ry. Co. 524 

v. New Bedford Bridge 48, 54, 453, 866 

i'. Northern Securities Co. 687 

v. Ortega 450 

v. Owens 684 

v. Palmer 202 

v. Parker 80 

v. Parkhurst D. M. Co. 26 

v. Passmore 616 

v. Percheman 25 

v. Perez 468, 469 

v. Perkins 680 

v. Ragsdale 89 

v. Railroad Bridge Co. 755 

v. Railroad Co. 685 

v. Rauscher 41 

v. Rector 494 

v. Reed 760, 761 

v. Reese 19, 120, 668, 832 

v. Reynolds 54 

v. Riley 464, 467 

v. Rio Grande D. & I. Co. 863 

v. Sacramento 441 

v. Samperyac 515 

v. Snyder 682 

v. State 468, 470 

v. Taylor 464 

v. Texas 23 

v. Tierney 177 

. Tobacco Factory 25 

v. Tract of Land, &c. 778 

v. Tynen 618, 544 

v. Union Pacific R. R. Co. 202, 560 

a. Waddell 14 

v. Wilson 48, 465 

United States Bank v. Daniel 33 

v. Halstead 103 

v. Norton 26 

v. Planters' Bank 360 

United States Dist. Co. v. Chicago 283, 709 

Unity v. Burrage 631, 555 

Universalist Society v. Providence 741 

University v. Illinois 395 

v. Skidmore 739 

University of N. C. v. Foy 386 

Updegraph v. Commonwealth 671, 673 

Upjohn . Board of .Health 881 

Upshaw, Ex parte 207, 209, 212 

Upton v. Hume 629, 644 

v. South Reading Br. R. R. 823, 824 

Urquhart v. Ogdenburg 302 

Usher v. Colchester 333 

v. McBratney 1S>8 

v. Severance 638, 639, 640 

Utley v. Campbell 606 

Utter v. Franklin 535 



CXV1 



TABLE OF CASES. 



V. 



Vale Mills v. Nashau 303 

Valin v. Langlois 128 
Valparaiso v. Chicago & G. T. Ry. Co. 806 

v. Hagen 782 

Van Allen v. Assessors 683 

Van Alstyne v. Railroad Co. 82 

Van Ankin v. Westfall 606 

Van Antwerp, Matter of 212 

Van Arsdale v. Laverty 618 

Van Baalen v. People 283 

Van Baumbach v. Bade 404, 406 
Van Bokelen v. Brooklyn City R. R. Co. 34 

Van Bokkelin v. Ingersoll 82 

Van Broeklin v. Tennessee 683 
Van Camp v. Board of Education 564 

Vance, Ex parte 291 

v. Little Rock 272 

v. Vance 407 

v. Vandercook Co. 847 

Vanderberg, Matter of 195 

Vanderbilt v. Adams 400, 855 

Vanderhurst v. Bacon 252 

Vanderlip v. Grand Rapids 788 

Vanderpoel v. O'Hanlon 904, 905 

Vanderslice v. Philadelphia 358 

Vanderzee v. McGregor 620 

Van Deusen v. Newcomer 830 

Vandine, Petitioner 286 

Van Fossen v. State 42 

Van Giesen v. Bloomfield 183 

Van Hagan, Ex parte 495 

Van Horn v. Des Moines 301 

v. People 678, 881 

Van Home v. Dorrance 237 

Van Inwagen v. Chicago 517 

Van Kleek v. Eggleston 80 

Van Ness v. Hamilton 606 

v. Pacard 48, 51 

Van Norman v. Gordon 45 

Van Orsdal v. Van Orsdal 579 

Van Pelt v. Davenport 304, 363 

Van Reipen v. Jersey City 768 

Van Rensselaer v. Ball ' 406, 515 

v. Hays 406, 515 

v. Kearney 33 

v. Read 516 
v. Snyder 406,409,410 

Van Riper v. North Plainfield 212 
v. Parsons 183, 215, 563 

Vansant v. Harlem Stage Co. 283 

Van Sly ke v. Ins. Co. 129,139 

Vanvactor v. State 486 

Van Valkenburg v. Brown 568, 901 
Van Witsen v. Gutman 764, 775, 777 

Van Wormer v. Albany 853, 854 

Van Wyck v. Aspinwall 620, 629 
Vanzant v. Waddell 502, 504, 506, 559 

Varden v. Mount 506 
Varick v. Smith 237, 777, 788 

Varner v. Martin 765 

Varney v. Justice 115, 930 

Vason v. Augusta 281 

Vasser v. George 717 

Vaughan v. Seade 458 

Vaughn v. Ashland 745 



Vaughn v. Harp 
Vausse v. Lee 
Veazie v. China 

v. Mayo 

v. Moore 

Veazie Bank v. Fenno 
Veeder v. Lima 



Page 
130 
630 
110 

836, 843 
864 

680, 681, 685 
274, 323 



Vega Steamship Co. v. Con. El. Co. 527 
Venard r. Cross 772 

Veneman v. Jones 285 

Venice v. Murdoch 321 

Veon v, Creaton 848 

Verges v. Milwaukee Co. 561 

Verner v. Carson 80 

v. Simmons 896 

v. Verner 629 

Vesta Mills v. Charleston 164 

Vestal v. Little Rock 721, 722 

Vickers v. Stoneman 619 

Vicksburg v. Tobin 691 

Vicksburg & M. R. R. Co. v. Lowry 162 
Vicksburg S. & P. R. R. Co. v. Den- 
nis 396 
Vicksburg W. W. Co. v. Vicksburg 393 
Victory, The 30 
Vidal v. Girard's Executors 670 
Vigo County v. Stout 130 
Vilas v. Milwaukee, &c. R. R. Co. 819 
Vinas v. Merch, &c. Co. 630 
Vincennes v. Citizens Gas L. & C. 

Co. , 288, 297 

v. Richards 302, 783 

Vincennes University v. Indiana 54 

Vincent v. Nantucket 309, 311 

Violett v. Violett 550 

Violette v. Alexandria 712, 731 

Virginia, Ex parte 18, 19, 492, 555 

v. Rives 19, 556 

v. Tennessee 36 

Vischer v. Vischer 578, 580 

Vise v. Hamilton Co. 477 

Vogel v. Gruaz 478 

v. State 895 

Vogle v. Pekoe 556 

Voglesong v. State 676, 859 

Voight v. Wright 655 

Von Hoffman v. Quincy 415 

Voorhees, Matter of 39 

Vose v. Morton 677 



W. 

Wabash, &c. Co. v. Beers 386 

Wabash, &c. Ry. Co. i;. Illinois 874 

Wabash Ry. Co. v. Defiance 297 

v. Tourville 42 
Wabash, St. L. & P. Ry. Co. v. 

McDougall 783 

Waco v. Powell 286 

Wade v. La Moille 320 

v. Richmond 267 

v. State 452 

v. Travis Co. 32 

v. Walnut 33 

Wadleigh v. Gilman 286, 878 



TABLE OF CASES. 



CXV11 



Page 

Wadsworth's Adm'r v. Smith 86i 
Wadsworth v. Union Pac. Ry. Co. 67<5 
Wagaman v. Byers 

Wager v. Troy Union R. R. Co. 791, 794 

Wagner v. Bissell 5! 

v. Gage Co. 824 

v. Railway Co. 817, 818 

Wahoo v. Dickinson 144, 165 

Wait v. Ray 26: 

Waite v. Merrill 660 

Walcott v. People 690 

Walcott W. M. Co. v. Upham 657 

Waldo v. Portland 330 

v. Waldo 679 

Waldron v. Haverhill 306 

v. Rensselaer, &c. R. R. Co. 836, 84i 
Wales v. Lyon 

v. Stetson 

v. Wales 
Walker o. Allen 

v. Caldwell 

v. Chapman 

v. Cincinnati 



80 

392, 56. 
406 
861 

204, 216 
712 

109, 128, 167, 184 
236, 240 

r. Deaver 614 

v. Dunham 207 

v. Harbor Commissioners 
v. Jameson 562 

v. New Mexico, &c. Ry. Co. 32 

v. Oswald 893 

v. Peelle 389 

v. Sanford 929, 930 

v. Sauvinet 18, 46 

v. Southern Pac. Ry. Co. 690 

v. Springfield 710 

v. State 209, 212, 481 

v. Taylor 31 

v. Towle 881 

v. Villavaso 30 

v. Whitehead 411 



Wall, Ex parte 

v. State 

v. Trumbull 

Walla Walla v. W. W. Water Co. 
Wallace, In re 

v. Georgia C. & N. Ry. Co. 

v. Menaslia 

i'. Meyers 

v. Richmond 

r. Sharon Trustees 

v. Shelton 
Waller v. Loch 
Walling v. Michigan 
Wallis v. Bazet 
Walls, Ex parte 
Wally's Heirs v. Kennedy 
Walnut v. Wade 
Walpole r. Elliott 
Walschlager v. Liberty 
Walsh, Re 

v. Barron 
. v. Columbus, H. V. & A. Ry. Co. 

r. State 
Walston v. Commonwealth 

v. Nevin 
Walter v. Bacon 



121, 163, 170, 173, 482 
176 

585, 587 
383 
481 
604 
305 
708 

310, 878 
267 

717, 736 
610 

688, 693 
651 
481 

502, 659 

186, 218, 274, 546 
242 
327 
442 



714 
26 

187 

382 
20 

631 



Page 

Walter v. People 382 

Walters v. Duke 710 

Waltham v. Kemper 335, 356 

Walther v. Warner 813, 817 

Walton v. Develing 910 

v. Greenwood 163 

Walton's Lessee v. Bailey 638 

Waltz v. Waltz 579 

Wamesit Power Co. v. Allen 760 

Warn mack v. Holloway 937 

Wanek v. Winona 424 

Wanser v. Atkinson 251, 511 

Wantlan v. White 627 

Wanzer v. Howland 587 

Warbiglee v. Los Angeles 303 

Warburton v. White 32 

Ward v. Barnard 517 

v. Boyce 42 
v. Farwell 407, 589, 887 

v. Flood 263, 657 

v. Greencastle 292 

v. Greenville 285 
v. Maryland 37, 667, 684, 685, 693 

v. Morris 693 

v. New England, &c. Co. 146 

v. Peck 788 

v. Race Horse 291 

v. State 446 

v. Warner 862 

Ward law v. Buzzard 522 

Ware v. Hylton 9, 25 

v. Little 751 

v. Miller 408 

v. Owens 514 

Warickshall's Case 446 

Waring v. Jackson 33 

v. Savannah 707 
Warner v. Bowdoin Sq. Bap. Ch. 660 

v. Curran 656 

v. Grand Haven 736 

v. Paine 629, 634 

v. People 388, 389 

v. Scott 80 

v. Trow 80 

Warren v. Board Registration 903 

v. Charlestown 246, 248 

v. Chicago 722 

v. Commonwealth 382 

v. Glynn 588 
v. Henley 732, 734, 737 

v. Lyons City 344 

v. McCarthy 42 

v. Paul 684 

v. Shuman 92 

v. Sohn 20 

v. State 465 
r. St. Paul, &c. R. R. Co. 765, 778 
Warren Manuf. Co. v. ./Etna Ins. Co. 38 

Warshung v. Hunt 630 

Wartman v. Philadelphia 888 

Warwick v. Underwood 80 

Wasliburn v. Franklin 517, 537 

v. Milwaukee, &c. R. R. Co. 824 

v. Oshkosh 722 

Washburne v. Cooke 611, 619 

Washington v. Hammond 281 



cxvm 



TABLE OF CASES. 



Washington v. Meigs 881 

v. Nashville 860 

v. Page 104,118,214 

Washington Avenue 698,716,717, 

730, 734 

Washington Bridge Co. v. State 838, 840 
Washington Co. v. Berwick 330 

v. Franklin R. R. Co. 206 

Washington Gas Light Co. v. Dis- 
trict of Columbia 357 
Washington Home v. Chicago 121 
Washington Ins. Co. r. Price 592, 693, 595 
Washington St., Re 184 
Washington University v. Rouse 395 
Wason v. Walter 600, 627, 628, 639, 647 

882 

Wasson v. Wayne Co. Com. 718 

Waterbury v. Newton 846, 858 

Waterhouse v. Public Schools 170 

Waterloo W. Mfg. Co. v. Shanahan 697, 

775 

Waters v. Leech 281 

Waters-Pierce Oil Co. v. Texas 179, 386 
Watertown v. Mayo 854, 883, 886 

Watertown Bank, &c. v. Mix 691 

Waterville v. County Commissioners 336, 

338 

v. Kennebeck Co. 269 

Water Works Co. v. Burkhart 217, 754 

775, 777, 796, 809 

Watkins, Ex parte 495, 496 

v. County Court 354 

v. De Armond 484 

v. Haight 629 

v. Holman's Lessee 146 

v. Inge 897 

v. Walker Co. 757 

Watson v. Avery 660 

v. Blackstone 129 

v. Jones 660, 661 

v. Kent 218 

v. McCarthy 606 

v. Mercer 374, 537, 638, 543 

v. Needham 302 

v. New York Cent. R. R. Co. 407, 409 

v. State 177 

r. Thurber 95 

v. Town of Thorn 278 

Watson's Case 177 

Watt v. People 449 

Watts v. Greenlee 607 

v. Norfolk & Western Ry. Co. 827 

v. State 440 

Waxahachie v. Brown 272 

Way v. Lewis 80 

v. Way 91, 92 

Wayland v. County Commissioners 695 

Way man v. Southard 132 

Wayne Co. v. Waller 477 

Wayrick t. People 459 

Weare v. Dearing 81 

Weaver v. Cherry 312 

v. Davidson County 66, 184 

v. Lapsley 119, 138, 209, 212, 213 

v. Mississippi, &c. Co. 787 

Webb v. Baird 477, 563 



Webb v. Beavan 

v. Den 

v. Dunn 

v. State 
Webber v. Donnelly 



Page 
605 

625, 526 
691 
437 
850 



Weber v. Harbor Commissioners 755 
v. Morris, &c. 80 

v. Reinhard 237, 707, 728 

v. State 468 

Webster v. Fargo 729 

v. French 114 

v. Harwinton 263, 266, 327 

v. Reid 583, 586 

v. Rose 414 

Webster, Professor, Trial of 467 

Wecherley v. Guyer 927 

Weckler v. Chicago 813 

Weed v. Black 198 

r. Boston 731 

v. Donovan 532 

v. Foster 647 

Weeks v. Gilmanton 268 

v. Milwaukee 266, 545, 703, 717, 722, 
725, 732, 735, 742, 746, 883, 884 
Weet v. Brockport 356, 357 

Wehn v. Commissioners 302 

Weidenfield v. Sugar Run Ry. Co. 767 
Weidenger v. Spruance 407, 511 

Weightman v. Washington 304, 356 

Weil v. Ricord 884 

Weill v. Kenfield 200, 214 

Weimer v. Bunbury 237, 506, 748 

Weir v. Cram 248 

v. Day 262 

v. St. Paul, &c. R. R. Co. 754 

Weis v. Ashley 203 

Weise v. Smith 861, 862, 863 

Weismer v. Douglas 317, 698, 700 

Weiss -r. Guerineau 58S 

v. Whittemore 606 

Weister v. Hade 11, 242, 253, 331, 332 
633, 543, 679 

Welborn v. Akin 411 

Welch v. Hotchkiss 283, 286, 710 

v. Post 212 

v. State 38 

v. Stowell 286, 884 

v. Sykes 42 

v. Wadsworth 416, 517, 633, 537 

Weldon v. Winslow 544 

Welker v. Potter 183 

Weller v. Burlington 301 

Wellington, Petitioner 232, 246, 253 

v. Boston & M. Ry. Co. 827 

Wellman, In re 194, 223 

v. Wickerman 764 

Wells, Ex parte 210 

v. Bain 69, 61 

v. Burbank 748 

v. Hyattsville Com'rs 739 

v. McClenning 80 

v. Missouri Pac. Ry. Co 222 

v. People 262 

v. Salina 

v. Savannah 740 

v. Scott 688 



TABLE OF CASES. 



CX1X 



Wells v. Somerset, &c. R. R. Co. 757 

v. Supervisors 320 

v. Taylor 925, 929 

v. Weston 546 

Wells, Fargo & Co. Exp. v. Crawford 693 

Welsh v. St. Louis 360 

Welton v. Dickson 764, 765, 775 

v. Missouri 687, 688, 693 

Wendel r. Durbin 113 

Wenliam v. State 891 

Wenner v. Thornton 218 

Wenzler v. People 209, 218 

Werner, Re 212 

v Galveston 167 

Wernwag v. Pawling 43 

Werth v. Springfield 296 

West v. Bancroft 800 

v. First Pres. Ch. 661 

v. Sansom 410 

West Branch, &c. Canal Co. v. Mul- 

liner 783 

Westbrook, Appeal of 843 

v. Deering 198 

v. Miller 104 

West Chicago Park Com'rs v. Mc- 

Mullen 183 

Westerfield, Ex parte 182 

Westerly Water- Works v. Westerly 383, 

393 

Western & A. Ry. Co. v. Atlanta 884 

v. State 24 

Western & A. R. R. Co. v. Young 293, 

843 

Western College v. Cleveland 301, 347, 

360 
Western Fund Savings Society v. 

Philadelphia 361 

Western Ry. Co. v. Alabama G. T. 

Ry. Co. 803 

Western R. R. Co. v. De Graff 162 

Western Union Telegraph Co. v. Call 

Pub. Co. 48 

v. Carew 281 

v. Eubank 876 

v. Freemont 689 

v. Howell 853 

v. Indiana 692 

v. James 852 

v. Massachusetts 683, 692 

v. Mayer 679 

v. Mayor 857 

v. New Hope 690 

v. Pendleton 862, 858 

v. Philadelphia 709 

r. State 249, 297 

v. Taggart 691 

v. Williams 787, 804 

Westervelt v. Gregg 505, 513, 516, 517 
v. Lewis 42 

Westfall v. Preston . 750 

Westfield Cem. Ass'n v. Danielson 770 
West Hartford v. Water Commis- 
sioners 695 
Westingliausen v. People 77, 132 
West Jersey R. R. Co. v. Cape May, 
&c. R. R. Co. 791 



Weston v. Barnicoat 

v. Charleston 

v. Foster 

v. Loyhed 

v. Syracuse 
West Orange v. Field 



606 

45, 682, 683 
808 
590 

259, 306 
304 



West River Bridge Co. v. Dix 398, 757 
West Virginia P. & T. Ry. Co. v. 

Gibson 826, 827 

West Virginia Trans, v. Volcanic 

Oil Co. 761, 763, 770 

West Wisconsin R. Co. v. Super- 
visors of Trempeleau Co. 394, 395 
Wetherell v. Stillman 42 

Wetmore v. Multonomah Co. 707 

Wetumpka v. Winter 167 

Weyerhauser v. Minnesota 21, 506, 748, 

749 

Weyl v. Sonoma R. R. Co. 791 

Weymann v. Jefferson 296, 304 

Weymouth, &c. Fire Commissioners 

v. County Com'rs 267, 269, 345 

Weyrich v. People 436 

Whalin v. Macomb 114 

Whallon v. Ingham Circ. Judge 240 

Wheat v. Ragsdale 941 

v. Smith 894, 905, 908, 938, 940 

Wheaton r. Beecher 624 

v. Peters 48, 52 

Wheeler v. Chicago 111,112 

v. Chubbuck 223, 224 

v. Cincinnati 301 

v. Jackson 624 

v. New York, N. H. & H. R. Ry. 

Co. 26, 247 

v. Patterson 927 

v. Philadelphia 183 

v. Plymouth 301 

v. Rochester, &c. R. R. Co. 809 

v. Shields 644 

v. Spencer 924 

v. State 209 

v. Wall 238, 459 

Wheeling & B. Bridge Co. v. Wheel- 
ing Bridge Co. 396 
Wheeling Bridge Case 863, 866 
Wheelock v. Young 766 
Wheelock's Election Case 929 
Whipley v. McCune 929 
Whipple v. Farrar' 616 
Whitcomb's Case 454 
White, Ex parte 40 
Re 689 
v. Barker 65 
v. Buchanan 676 
v. Carroll 629 
v. Charleston 757 
v. Clark 765 
v. Com'rs of Norfolk Co. 825 
v. Crow 587 
v. Farmer's Highline C. & R. Co. 873 
v. Flynn 627 
v. Hart 62, 405, 505 
v. Hinton 195 
v. Kendrick 
v. Kent 285, 887 



cxx 



TABLE OF CASES. 



White v. Manhattan Ry. Co. 816 

v. Met. W. S. El. Ry. Co. 828 

v. Multnomah Co. 906 

v. Nashville, &c. R. R. Co. 814 

v. N. W. N. C. Ry. Co. 803 



v. Nichols 
v. People 
v. Phillipston 
v. Sanderson 
v. Schloerb 
v. Scott 
v. Smith 
v. Stamford 
v. Tallman 
v. The Mayor 
v. White 
r. Yazoo City 
v. Zane 



610,611 
716, 717, 730, 734 
303 
899 
416 
231 
741 

239, 312 
282 
281 

164, 634, 764 

296, 302 

95 



Whitebread v. The Queen 
Whitecar v. Michenor 
White County v. Given 
Whited v. Lewis 
Whitehead v. Latham 



473 
G61 
130 
209 
407 



Whitehouse v. Androscoggin R. R. 

Co. 826 

Whitehurst v. Coleen 681 

v. Rogers 80 

Whiteley v. Adams 610, 648 

v. Miss., &c. Co. 824 

White Lick Meeting v. White Lick 

Meeting 661 

Whiteman's Ex'rs v. Wilmington, 

&c. R. R. Co. 74, 777 

White Mountains R. R. Co. v. White 

Mountains R. R. Co. of N. H. 541 

White River Turnpike Co. v. Cen- 
tral R. R. Co. 757, 777 
White School House v. Post 615 
White Star Co. v. Gordon Co. 355 
Whitfleld v. Longest 286, 860, 884 
v. Paris 306 
Whiting v. Barney 478 
v. Earle 485 
v. Mt. Pleasant 206 
v. West Point 272 
Whiting's Estate, Re 720 
Whitley v. State 436, 452 
Whitman v. Boston, &c. R. R. Co. 825 
v. Nat'l Bk. of Oxford 122 
Whitmore v. Harden 64 
v. State 468 
Whitney v. Allen 618, 619 
v. Ragsdale 707 
v. Richardson 652 
v. Robertson 25 
v. State 19, 436 
v. Stow 268 
v. Township Board 849, 850 
v. Wyman 118 
Whitsett v. Union D. & R. Co. 300 
Whitson v. Franklin 285, 840 
Whittaker v. Johnson Co. 80 
Whittemore v. Weiss 668 
Whitten v. State 468, 469 
v. Tomlinson 39, 41 
Whittier v. Wendell 42 



Whittingham v. Bowen 
Whittington r. Polk 
Whittle v. Saluda Co. 
Whitwell, Ex parte 
Whorton v. Morange 
Whyte v. Nashville 



765 

79, 228, 237 
474 
886 
677 
294 



Wick v. The Samuel Strong 34 

Wicks v. De Witt 802 

Wider v. East St. Louis 339 

Wiggins r. Chicago 285 

Wiggins .& Johnson v. Williams 591 

Wiggins Ferry Co. v. East St. Louis 691, 

710, 867 

Wight v. Davidson 714, 731 

Wilbraham v. Ludlow 904 

Wilbur v. Springfield 730 

Wilby v. Elston 607 

Wilcox v. Chicago 305 

v. Deer Lodge Co. 340, 702 

v. Hemming 286, 860 

v. Jackson 33 

v. Kassick 42, 586 

v. Luco 23 

v. Meriden 824 

v. Nolze 39 

r. Smith 898 

v. St. Paul, &c. Ry. Co. 823 

v. Wilcox 579 

Wild v. Deig 765 

r. Paterson 355 

Wilder v. Boston & A. Ry. Co. 763 

v. Case 81 

v. Chicago & W. M. Ry. Co. 628, 656, 

84 1 

v. Maine Cent. R. R. Co. 841 

Wildes v. Van Voorhis 513 

Wildey v. Collier 196 

Wiley v. Bluffton 267 

v. Flournoy 113 

v. Parmer 691 

v. Sinkler 668 

Wilkerson v. Rahrer 259 

Wilkes v. Wood 433 

Wilkes's Case 428 

Wilkes-Barre v. Meyers 183 

Wilkes County v. Coler 324 

Wilkins v. Detroit 717 

v. Miller 209 

v. Rutland 362 

v. State 890 

Wilkinson v. Cheatham 647, 648 

v. Leland 134, 146, 149, 234, 244 

Willamette Iron Bridge Co. v. Hatch 65, 

688, 864, 866 

Willamette Iron Wks. v. Oregon 

R. & N. Co. 784 

Willard v. Harvey 530 

v. Killingworth 266, 287 

v. Longstreet 412 

v. People 247, 250 

v. Presbury 719, 730 

Willey r. Belfast 363 

Williams v. Augusta 881 

v. Bank of Michigan 64 

v. Bidleman 182 

v. Brooklyn El. Ry. Co. 803 



TABLE OF CASES. 



CXX1 



Williams v. Bryant 
r. Clayton 
v. Commonwealth 
v. Conger 
v. Courtney 
v. Davidson 



17. Detroit 
i7. Eggleston 
17. Fears 
v. Haines 
17. Heard 
v. Hill 
v. Johnson 
17. Kirkland 
v. Mississippi 



607 
897 

444, 467, 470 
33 
514 
271, 272 



120, 237, 716, 729, 735 

269, 340, 711 

16, 687, 693 

407 

29 

607 

529 

83 

16 



v. Natural Bridge Plank R. Co. 790 
v. Newport 388, 389 

17. N. Y. Central R. R. Co. 791, 806 
17. Norris 30 

17. Oliver 30 

v. Payson 209, 212, 247 

77. People 209 

v. Potter 930 

v. Roberts 275 

17. School District 113, 700, 743, 769 
v. Smith 606 

v. State 209,434,458,911 

i?. State Board 706 

v. Stein 912 

v. Wing 398 

Williamson v. Carlton 232 

v. Lane 591, 938 

17. Louisville Ind. Sch. 305 

v. New Jersey ' 390 

17. Suydam 144 

v. Williamson 146 

Williamsport v. Beck 719, 730 

Williar v. Baltimore, &c. Ass. 617 

Willis v. Baylis 495 

v. Mabon 122 

v. Owen 87, 163 

v. State 459 

17. St. Paul Sanitation Co. 122 

v. Winona 784 

Williston 17. Colkett 531 

Willoughby v. George 530 

Wills 17. State 441 

Wilmarth v. Burt 193 

Wilmington v. Ewing 356 

v. Macks 713 

r. Vandegrift 301 

Wilmington R. R. Co. v. Reid 395 

Wilmington & W. Ry. Co. v. Alsbrook 397 
Wilmot v. Horton 346 

Wilson, Ex parte 436 

Re (8 Mackey) 687, 846 

fie (ION. M.) 687 

v. Ala. G. S. Ry. Co. 272, 291, 854 
v. Blackbird Creek Marsh Co. 688, 
767, 776, 863, 867 

17. Brown 408, 909 

v. Chilcott 717 

v. Collins 630 

v. Cottman 607 

v. Crockett 764 

v. Eureka City 21, 293 



I 

Page 

Wilson w. Fitch 628 

v. Franklin 764 

t7. Hardesty 637 

v. Jackson 42 

v. Johns Island Church 661 

v. King 895, 898 

t7. McKenna 618, 527 

t7. McNamee 688, 858 

v. New York 742, 783, 856 

17. Noonan 628, 658 

17. North Carolina 20 

v. Ohio, &c. R. R. Co. 374, 375 

v. People 473 

i?. Rockford, &c. R. R. Co. 825 

v. Runyan 607 

17. Salamanca 321 

v. School District 262 

v. Simon 516 

v. Simonton 591 

v. State 60, 425, 447, 466, 482, 499 

v. Sullivan 630 

17. Supervisors of Sutter 740 

v. Troy 358 

v. Wheeling 362 

v. Wood 527 

Wilson's Case 490 

Wilson's Exec. v. Deen 80 

Wimmer v. Eaton 917 

Winbigler v. Los Angeles 363 

Winchell v. State 452 

Winchester v. Ayres 677, 589 

17. Capron 804 

Winchester & L. T. R. Co. v. Crox- 

ton 873, 875 

Wind v. Her & Co. 690 

Windham v. Portland 268 

Wingate v. Sluder 679 

Winkley v. Newton 719 

Winklemans v. Des Moines 783 

Winnsboro v. Smart 284 

Winona, &c. R. R. Co. v. Dcnman 825 
17. Waldron 823, 841 

Wiuona & St. Peter L. Co. v. Minne- 
sota 22, 740 
v. Plainview 322 
Winslow, Ex parte 495 
v. Grindall 80 
r. State 445 
" 17. Winslow 868 
Winsor v. The Queen 469 
Winter v. City Council 295 
17. Jones 403 
v. Thistlewood 937 
Winterton v. State 217 
Wires v. Farr 522 
Wirth w. Wilmington 279 
Wisconsin v. Pelican Ins. Co. 43, 181 
Wisconsin Centr. R. R. Co. v. Corn- 
stock 683 
v. Taylor Co. 101, 707, 739 
Wisconsin Keeley Inst. v. Milwaukee 

Co. 696 

Wisconsin M. & P. Ry. Co. v. Jacob- 
son 856 
Wisconsin River Imp. Co. v. Lyons 54 
Wisconsin Tel. Co. v. Oshkosh 283 



cxxn 



TABLE OF CASES. 



Page 

Wisconsin Water Co. v. Winans 765, 768, 

777 

Wise v. Bigger 194 

Wisners v. Monroe 209, 212 

Witliam v. Osborn 765 

Withers v. Buckley 755 

v. State 481 

Withington v. Corey 653 

Witmer v. Schlatter 80 

Witt v. State 452 

v. St. Paul, &c. R. R. Co. 815 

Wixon v. Newport 305, 355 

Woart v. Winnick 374, 376, 522, 530 

Wolcott v. Holcomb 903, 906, 928 

v. Rickey 485 

v. Wigton 92, 115 

Wolcott Manuf. Co. v. Uphara 771 

Wolf v. Lansing 283, 851 

Wolfe v. Covington, &c. R. R. Co. 791 

v. McCaull 187, 219, 220 

Wolff v. New Orleans 415 

Wonderly v. La Fayette 28 

Wong v. Astoria 280, 454 

Wong Kim Ark's Case 14 

Wood v. Brady 32, 36 

v. Brooklyn 279 

v. Brush 16 

v. Fitzgerald 18 

v. Fort 223 

v. Kennedy 416, 637 

v. McCann 197, 198 

v. Randall 688 

v. Stephen 82 

v. Watkinson 41 

Wood's Estate, Re 580 

Woodard v. Brien 655 

Woodbridge v. Detroit 716, 732, 812, 860 

Woodburn v. Kilbourn Manuf. Co. 55, 867 

Woodbury v. Grimes 407 

v. Thompson 607 

Woodcock v. Bennett 603 

Woodfall's Case 652 

Woodfolk v. Nashville R. R. Co. 825 

Woodhull v. Wagner 417 

Woodlawn Cemetery v. Everett 881 

Woodman v. Pitman 863 

Woodmere Cem. v. Ruolo 755 

Woodruff w. Bradstreet Co. 611 

v. Fisher 735 

v. Mississippi 32 

v. Neal 788 

v. Parham 687, 694 

v. Scruggs 618, 637 

v. Trapnall 35, 403 

Woods v. Miller 433 

v. State 845 

Woods's Appeal 61 

Woodside v. Wagg 898 

Woodson v. Murdock 123, 206 

Woodward v. Commonwealth 38 

v. Lander 620 

v. Worcester 362 

Woodward Iron Co. v. Cabaniss 121 

Wood worth v. Bowles 122 

v. Spring 684 

v. Tremere 41 



Wool, Matter of 
Woollen v. Banker 
Woolsey, Matter of 

t\ Commercial Bank 
Wooten, Ex parte 

v. State 



Page 
482 
13 
344 
259 
456 
240 



Worcester v. Norwich, &c. R. R. Co. 394 

v. Worcester St. Ry. Co. 393 

Worcester Co. v. Worcester 695 

Worden v. New Bedford 306 

Work v. Corrington 40, 41 

v. State 458, 577 

Worley v. Columbia 305 

v. Harris 364 

Worman v. Hagan 132, 163 

Wormley v. Uist. Col. 714 

Worsham v. Stevens 407 

Worth v. Butler 607 

v. Norton 192 

v. Wilmington, &c. R. R. Co. 706 

Worthen v. Badget 194 

v. Prescott 487 

Worthley v, Steen 183 

Worthy r. Commissioners 30 

Wortman, In re 894 

Wray, Ex parte 438 

v. Pittsburg 717 

Wreford v. The People 286, 292, 730, 883 

Wren, Ex parte 194 

Wright, Re 382 

v. Augusta 301 

v. Boon 689 

r. Boston 728, 736 

v. Carter 790, 806 

v. Chicago 717 

v. Cradlebaugh, 527 

v. De Frees 258, 259 

v. Dressel 430 

v. Dunham 626 

v. Graham 544 

v. Hawkins 517, 540 

v. Le Glair 80 

v. Lindsay 606 

v. Lothrop 620, 629 

v. Nagle - 662 

v. Oakley 621 

v. People 437 

. State 467, 469 

v. Straub 409 

v. Woodgate 610 

v. Wright 156 

Wroth v. Johnson 924 

Wurts v. Hoagland 868 

Wyandotte v. Drennan 388 

Wyatt v. Buell 630 

v Smith 514 

Wynehamer v. People 128, 237, 239, 241, 

604, 606, 520, 831, 849, 850, 853 

Wynne, In re 223 



Y. 

Yancy v. Yancy 
Yarbrough, Ex parte 
Yates v. Lansing 



237, 522 

14, 18, 496 

453 



TABLE OF CASES. 



CXX111 



Page 


Page 


Yates v. Milwaukee 286, 787, 788, 883 


Young v. Commissioners, &c 355 


r. People 434 


v. Harrison 813 


v. Yates 679 


v. Joslin 111 


Yazoo & M. R. R. Co. v. Thomas 396, 


v. McKenzie 765 


740 


v. Miller 605 


Yazoo Delta Levee Board v. Daney 817 


v. State Bank 137 


Yeager v. Tippecanoe 365 


v. Thomas 709 


Yeaker v. Yeaker 25 


v. Wolcott 514 


Yeatman v. Crandell 71 7, 736, 868 


Youngblood v. Sexton 266, 284, 336, 707, 


v. Day 546 


709, 712, 851, 886 


Yeaton v. Bank of Old Dominion 394 




v. United States 616, 544 




Yeazel v. Alexander 881 


Z. 


Yerger v. Rains 120 




Yick Wo, Matter of 286 


Zabriskie v. R. R. Co. 167, 324 


v. Hopkins 19, 35, 286, 657 


Zanesville v. Auditor of Muskingum 744 


Yonoski v. State 859 


Zeiler v. Chapman 907 


York v. Pease 619 


Zeisweiss v. James 672 


Yorty v. Paine 897 


Zimmerman v. Canfield 760, 865 


Yost v. Stout 764 


v. Union Canal Co. 781, 867 


Yost's Report 631 


Zitske v. Goldberg 268 


Young v. Beardsley 627 


Zottman v. San Francisco 311 


v. Black 80 


Zumhoff v. State 849 


v. Charleston 356 


Zylstra's Case 605 



CONSTITUTIONAL LIMITATIONS. 




CONSTITUTIONAL LIMITATIONS. 



CHAPTER I. 

DEFINITIONS. 

A STATE is a body politic, or society of men, united together 
for the purpose of promoting their mutual safety and advantage 
by the joint efforts of their combined strength. 1 The terms 
nation and State are frequently employed, not only in the law of 
nations, but in common parlance, as importing the same thing ; 2 
but the term nation is more strictly synonymous with people, and 
while a single State may embrace different nations or peoples, a 
single nation will sometimes be so divided politically as to consti- 
tute several States. 

In American constitutional law the word State is applied to the 
several members of the American Union, while the word nation 
is applied to the whole body of the people embraced within the 
jurisdiction of the federal government. 

Sovereignty, as applied to States, imports the supreme, absolute, 
uncontrollable power by which any State is governed. 3 A State 
is called a sovereign State when this supreme power resides within 
itself, whether resting in a single individual, or in a number of 
individuals, or in the whole body of the people. 4 In the view of 
international law, all sovereign States are and must be equal 

1 Vattel, b. 1, c. 1, 1 ; Story on Const. rt Story on Const. 207 ; 1 Black. 
207 ; Wheat. Int. Law. pt. 1, c. 2, 2 ; Com. 49 ; Wheat. Int. Law, pt 1, c. 2, 
Halleck, Int. Law, 63; Bouv. Law Diet. 6; Halleck, Int. Law, 63, 64 ; Austin, 
" State." " A multitude of people united Province of Jurisprudence, Lee. VI. ; 
together by a communion of interest, and Chipman on Government, 137. " The 
by common laws, to which they submit right of commanding finally in civil 
with one accord." Burlamaqui, Politic society." Burlamaqui, Politic Law, 
Law, c. 5. See Chishohn v. Georgia, 2 c. 6. 

Ball. 467 ; Georgia v. Stanton, 6 Wall. 65. 4 Vattel, b. 1, c. 1, 2 ; Story on 

2 Thompson, J., in Cherokee Nation v. Const. 207 ; Halleck, Int. Law, 65. In 
Georgia, 5 Pet. 1, 52; Chase, Ch. J., in other words, when it is an independent 
Texas v. White, 7 Wall. 700, 720 ; Vattel, State. Chipman on Government, 137. 
supra. 



4 CONSTITUTIONAL LIMITATIONS. [CH. L 

in rights, because from the very definition of sovereign State, it 
is impossible that there should be, in respect to it, any political 
superior. 

The sovereignty of a State commonly extends to all the sub- 
jects of government within the territorial limits occupied by the 
associated people who compose it ; and, except upon the high 
seas, which belong equally to all men, like the air, and no part of 
which can rightfully be appropriated by any nation, 1 the dividing 
line between sovereignties is usually a territorial line. In Amer- 
ican constitutional law, however, there is a division of the powers 
of sovereignty between the national and State governments by 
subjects : the former being possessed of supreme, absolute, and 
uncontrollable power over certain subjects throughout all the 
States and Territories, while the States have the like complete 
power, within their respective territorial limits, over other sub- 
jects. 2 In regard to certain other subjects, the States possess 
powers of regulation which are not sovereign powers, inasmuch 
as they are liable to be controlled, or for the time being to become 
altogether dormant, by the exercise of a superior power vested in 
the general government in respect to the same subjects. 

A constitution is sometimes defined as the fundamental law of 
a State, containing the principles upon which the government is 
founded, regulating the division of the sovereign powers, and 
directing to what persons each of these powers is to be confided, 
and the manner in which it is to be exercised. 3 Perhaps an 
equally complete and accurate definition would be, that body of 
rules and maxims in accordance with which the powers of sover- 
eignty are habitually exercised. 

In a much qualified and very imperfect sense every State may 
be said to possess a constitution ; that is to say, some leading 

1 Vattel, b. 1, c.23, 281 ; Wheat. Int. 506, 516. See Tarble's Case, 13 Wall. 
Law, pt. 2, c. 4, 10. 397. That the general division of powers 

2 McLean, J., in License Cases, 5 How. between the federal and State govern- 
504, 588. " The powers of the general ments has not been disturbed by the new 
government and of the State, although amendments to the federal Constitution, 
both exist and are exercised within the see United States v. Cruikshank, 92 U. S. 
same territorial limits, are yet separate Rep. 542. 

and distinct sovereignties, acting sepa- 8 1 Bouv. Inst. 9 ; Duer, Const. Juris, 

rately and independently of each other, 26. " By the constitution of a State I 

within their respective spheres. And the mean the body of those written or un- 

fcphere of action appropriated to the written fundamental laws which regulate 

United States is as far beyond the reach the most important rights of the higher 

of the judicial process issued by a State magistrates and the most essential privi- 

judge or a State court, as if the line of leges of the subjects." Mackintosh on 

division was traced by landmarks and the Study of the Law of Nature and 

monuments visible to the eye." Taney, Nations. 
Ch. J., in Ableman v. Booth, 21 How. 



CH. I.] DEFINITIONS. 5 

principle has prevailed in the administration of its government, 
until it has become an understood part of its system, to which 
obedience is expected and habitually yielded ; like the hereditary 
principle in most monarchies, and the custom of choosing the 
chieftain by the body of the people, which prevails among some 
barbarous tribes. But the term constitutional government is ap- 
plied only to those whose fundamental rules or maxims not only 
locate the sovereign power in individuals or bodies designated or 
chosen in some prescribed manner, but also define the limits of 
its exercise so as to protect individual rights, and shield them 
against the assumption of arbitrary power. 1 The number of these 
is not great, and the protection they afford to individual rights 
is far from being uniform. 2 

hi American constitutional law, the word constitution is used 
in a restricted sense, as implying the written instrument agreed 
upon by the people of the Union, or of any one of the States, as 
the absolute rule of action and decision for all departments and 
officers of the government, in respect to all the points covered by 
it, which must control until it shall be changed "by the authority 
which established it, and in opposition to which any act or regu- 
lation of any such department or officer, or even of the people 
themselves, will be altogether void. 

The term unconstitutional law must have different meanings in 
different States, according as the powers of sovereignty are or are 
not possessed by the individual or body which exercises the pow- 
ers of ordinary legislation. Where the law-making department 
of a State is restricted in its powers by a written fundamental 
law, as in the American States, we understand by unconstitu- 
tional law one which, being opposed to the fundamental law, is 
therefore in excess of legislative authority, and void. Indeed, 
the term unconstitutional law, as employed in American jurispru- 
dence, is a misnomer, and implies a contradiction ; that enactment 
which is opposed to the Constitution being in fact no law at all. 
But where, by the theory of the government, the exercise of 

1 Calhoun's Disquisition on Govern- a constitutional government, until the 
ment, Works, I. p. 11. monarch is deprived of power to set it 

2 Absolute monarchs, under a pressure aside at will. The grant of Magna 
of necessity, or to win the favor of tlit-ir Charta did not make the English a con- 
people, sometimes grant them what is stitutional monarchy ; it was only after 
called a constitution ; but this, so long as repeated violations and confirmations of 
the power of the monarch is recognized that instrument, and when a further dis- 
as supreme, can be no more than his regard of its provisions had become dan- 
promise that he will observe its pro- gerous to the Crown, that fundamental 
visions, and conduct the government rights could be said to have constitu- 
accordingly. The mere grant of a con- tional guaranties, and the government to 
stitution does not make the government be constitutional. 



6 CONSTITUTIONAL LIMITATIONS. [CH. L 

complete sovereignty is vested in the same individual or body 
which enacts the ordinary laws, any enactment, being an exercise 
of power by the sovereign authority, must be obligatory, and, if it 
varies from or conflicts with any existing constitutional principle, 
it must have the effect to modify or abrogate such principle, in- 
stead of being nullified by it. This must be so in Great Britain 
with every law not in harmony with pre-existing constitutional 
principles ; since, by the theory of its government, Parliament ex- 
ercises sovereign authority, and may even change the constitution 
at any time, as in many instances it has done, by declaring its 
-will to that effect. 1 And when thus the power to control and 
modify the constitution resides in the ordinary law-making power 
of the State, the term unconstitutional law can mean no more than 
this ; a law which, being opposed to the settled maxims upon 
which the government has habitually been conducted, ought not 
(to be, or to have been, adopted. 2 It follows, therefore, that in 
'< Great Britain constitutional questions are for the most part to be 
discussed before the people or the Parliament, since the declared 
will of the Parliament is the final law ; but in America, after a 
constitutional question has been passed upon by the legislature, 
^ there is generally a right of appeal to the courts when it is 
attempted to put the will of the legislature in force. For the will 
of the people, as declared in the Constitution, is the final law ; 
and the will of the legislature is law only when it is in harmonv 
with, or at least is not opposed to, that controlling instrument 
which governs the legislative body equally with the private 
citizen. 3 

1 1 Black. Cora. 161 ; De Tocqueville, gina, 2 Sup. Ct. R. (Ont.) 70; Leprohn*. 

Democracy in America, c. 6 ; Broom, Ottawa, 2 App. R. 522. 
Const. Law, 795 ; Fischel, English Con- 2 Mr. Austin, in his Province of Juris 

stitution, b. 7, c. 5. In the Dominion of prudence, Lee. VI., explains and enlarges 

Canada, where the powers of sovereignty upon this idea, and gives illustrations to 

are confided for exercise, in part to the show that in England, and indeed under 

Dominion Parliament and in part to the most governments, a rule prescribed by 

Provincial Parliaments, with a superin- the law-making authority may be un- 

tending authority over all in the imperial constitutional, and yet legal and obliga- 

government, the term unconstitutional tory. 

law has a meaning corresponding to its 8 See Chapter VII. post. 
use in the United States. Severn v. Re- 



CH. IL] THE CONSTITUTION OF THE UNITED STATES. 



CHAPTER II. 

THE CONSTITUTION OF THE UNITED STATES. 

THE government of the United States is the existing repre- 
sentative of the national government which has always in some 
form existed over the American States. Before the Revolution, 
the powers of government, which were exercised over all the 
colonies in common, were so exercised as pertaining either to the 
Crown of Great Britain or to the Parliament ; but the extent of 
those powers, and how far vested in the Crown and how far in 
the Parliament, were questions never definitely settled, and which 
constituted subjects of dispute between the mother country and 
the people of the colonies, finally resulting in hostilities. 1 That 
the power over peace and war, the general direction of commer- 
cial intercourse with other nations, and the general control of 
such subjects as fall within the province of international law, 
were vested in the home government, and that the colonies were 
not, therefore, sovereign States in the full and proper sense of 
that term, were propositions never seriously disputed in America, 
and indeed were often formally conceded ; and the disputes re- 
lated to questions as to what were or were not matters of internal 
regulation, the control of which the colonists insisted should be 
left exclusively to themselves. 

Besides the tie uniting the several colonies through the Crown, 
of Great Britain, there had always been a strong tendency to a 
more intimate and voluntary union, whenever circumstances of 
danger threatened them ; and this tendency led to the New Eng- 
land Confederacy of 1643, to the temporary Congress of 1690, to 
the plan of union agreed upon in Convention of 1754, but rejected 
by the Colonies as well as the Crown, to the Stamp Act Con- 
gress of 1765, and finally to the Continental Congress of 1774. 
When the difficulties with Great Britain culminated in actual 
war, the Congress of 1775 assumed to itself those powers of 
external control which before had been conceded to the Crown 

1 1 Pitkin's Hist. U. S. c. 6 ; Life and Colonial Congress of 1765 ; Ramsay's 

Works of John Adams, Vol. I. pp. 122, Revolution in South Carolina, pp. 6-11; 

161; Vol. II. p. 311 : Works of Jefferson, 5 Bancroft's U. S. c. 18; 1 Webster's 

Vol. IX. p. 294 ; 2 Marshall's Washing- Works, 128 ; Von Hoist, Const. Hist 5. 

ton, c. 2 ; Declaration of Rights by 1 ; Story on Const. 183 et seq. 



8 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 



or to the Parliament, together with such other powers of sov- 
ereignty as it seemed essential a general government should ex- 
ercise, and thus became the national government of the United 
Colonies. By this body, war was conducted, independence de- 
clared, treaties formed, and admiralty jurisdiction exercised. It 
is evident, therefore, that the States, though declared to be " sov- 
ereign and independent," were never strictly so in their individ- 
ual character, but were always, in respect to the higher powers of 
sovereignty, subject to the control of a central authority, and 
were never separately known as members of the family of na- 
tions. 1 The Declaration of Independence made them sovereign 
and independent States, by altogether abolishing the foreign 
jurisdiction, and substituting a national government of their own 
creation. 

But while national powers were assumed by and conceded to 
the Congress of 1775-76, that body was nevertheless strictly rev- 
olutionary in its character, and, like all revolutionary bodies, its 



1 "All the country now possessed by 
the United States was [prior to the Revo- 
lution] a part of the dominions appertain- 
ing to the Crown of Great Britain. Every 
acre of land in this country was then 
held, mediately or immediately, by grants 
from that Crown. All the people of this 
country were then subjects of the King 
of Great Britain, and owed allegiance to 
him ; and all the civil authority then ex- 
isting or exercised here flowed from the 
head of the British empire. They were 
in a strict sense fellow-subjects, and in a 
variety of respects one people. When 
the Revolution commenced, the patriots 
did not assert that only the same affinity 
and social connection subsisted between 
the people of the colonies, which subsisted 
between the people of Gaul, Britain, and 
Spain, while Roman provinces, namely, 
only that affinity and social connection 
which result from the mere circumstance 
of being governed by one prince ; differ- 
ent ideas prevailed, and gave occasion to 
the Congress of 1774 and 1775. 

" The Revolution, or rather the Dec- 
laration of Independence, found the 
people already united for general pur- 
poses, and at the same time providing 
for their more domestic concerns by 
State conventions and other temporary 
arrangements. From the Crown of 
Great Britain the sovereignty of their 
country passed to the people of it ; and 



it was not then an uncommon opinion 
that the unappropriated lands which be- 
longed to the Crown passed, not to the 
people of the colony or State within 
whose limits they were situated, but to 
the whole people. On whatever princi- 
ples this opinion rested, it did not give 
way to the other, and thirteen sov- 
ereignties were considered as emerged 
from the principles of the Revolution, 
combined with local convenience and 
considerations ; the people, nevertheless, 
continued to consider themselves, in a 
national point of view, as one people; 
and they continued without interruption 
to manage their national concerns accord- 
ingly. Afterwards, in the hurry of the 
war, and in the warmth of mutual confi- 
dence, they made a confederation of the 
States the basis of a general government. 
Experience disappointed the expectations 
they had formed from it ; and then the 
people, in their collective capacity estab- 
lished the present Constitution." Per 
Jay, Ch. J., in Chisholm v. Georgia, 2 
Dall. 419, 470. See this point forcibly put 
and elaborated by Mr. A. J. Dallas, in 
his Life and Writings by G. M. Dallas, 
200-207. Also in Texas . White, 7 
Wall. 724. Professor Von Hoist, in his 
Constitutional History of the United 
States, c. 1, presents the same view 
clearly and fully. Compare Hurd, 
Theory of National Existence, 125. 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 9 

authority was undefined, and could be limited only, first, by in- 
structions to individual delegates by the States choosing them ; 
second, by the will of the Congress ; and third, by the power to 
enforce that will. 1 As in the latter particular it was essentially 
feeble, the necessity for a clear specification of powers which 
should be exercised by the national government became speedily 
apparent, and led to the adoption of the Articles of Confederation. 
But those articles did not concede the full measure of power es- 
sential to the efficiency of a national government at home, the en- 
forcement of respect abroad, or the preservation of the public 
faith or public credit ; and the difficulties experienced induced 
the election of delegates to the Constitutional Convention held 
in 1787, by which a constitution was formed which was put into 
operation in 1789. As much larger powers were vested by this 
instrument in the general government than had ever been exer- 
cised in this country by either the Crown, the Parliament, or the 
Revolutionary Congress, and larger than those conceded to the 
Congress under the Articles of Confederation, the assent of 
the people of the several States was essential to its acceptance, 
and a provision was inserted in the Constitution that the ratifica- 
tion of the conventions of nine States should be sufficient for the 
establishment of the Constitution between the States so ratifying 
the same. In fact, the Constitution was ratified by conventions 
of delegates chosen by the people in eleven of the States, before 
the new government was organized under it ; and the remaining 
two, North Carolina and Rhode Island, by their refusal to accept, 
and by the action of the others in proceeding separately, were 
excluded altogether from that national jurisdiction which before 
had embraced them. This exclusion was not warranted by any- 
thing contained in the Articles of Confederation, which purported 
to be articles of " perpetual union ; " and the action of the eleven 
States in making radical revision of the Constitution, and exclud- 
ing their associates for refusal to assent, was really revolutionary 
in character, 2 and only to be defended on 4 the same ground of 
necessity on which all revolutionary action is justified, and which 
in this case was the absolute need, fully demonstrated by experi- 
ence, of a more efficient general government. 3 

1 See remarks of Iredell, J., in Penhal- 8 " Two questions of a very delicate 
low v. Doane's Adm'r, 3 Dall. 54, 91, nature present themselves on this occa- 
and of Blair, J., in the same case, p. 111. sion : 1. On what principle the confedera- \ 
The true doctrine on this subject is very tion, which stands in the form of a solemn 
clearly explained by Chase, J., in Ware compact among the States, can be super- 
v. Hylton, 3 Dall. 199, 231. seded without the unanimous consent of 

2 Mr. Van Buren has said of it that it the parties to it ; 2. What relation is to 
was " an heroic, though perhaps a law- subsist between the nine or more States, 
less, act." Political Parties, p. 50. ratifying the Constitution, and the re- 



10 



CONSTITUTIONAL LIMITATIONS. 



[CH. H. 



Left at liberty now to assume complete powers of sovereignty 
as independent governments, these two States saw fit soon to 
resume their place in the American family, under a permission 
contained in the Constitution ; and new States have since been 
added from time to time, all of them, with a single exception, 
organized by the consent of the general government, and embra- 
cing territory previously under its control. The exception was 
Texas, which had previously been an independent sovereign State, 
but which, by the conjoint action of its government and that of 
the United States, was received into the Union on an equal foot- 
ing with the other States. 

Without, therefore, discussing, or even designing to allude to 
any abstract theories as to the precise position and actual power 
of the several States at the time of forming the present Constitu- 
tion, 1 it may be said of them generally that they have at all times 
been subject to some common national government, which has 
exercised control over the subjects of war and peace, and other 

maining few who do not become parties 
to it. The first question is answered at 
once by recurring to the absolute neces- 
sity of the case ; to the great principle of 
self-preservation ; to the transcendent law 
of nature and of nature's God, which de- 
clares that the safety and happiness of 
society are the objects at which all politi- 
cal institutions aim, and to which all such 
institutions must be sacrificed. Perhaps, 
also, an answer may be found without 
searching beyond the principles of the 
compact itself. It has been heretofore 
noted, among the defects of the confed- 
eration, that in many of the States it had 
received no higher sanction than a mere 
legislative ratification. The principle of 
reciprocality seems to require that its 
obligation on the other States should be 
reduced to the same standard. A com- 
pact between independent sovereigns, 
founded on acts of legislative authority, 
can pretend to no higher validity than 
a league or treaty between the parties. 
It is an established doctrine on the sub- 
ject of treaties, that all of the articles are 
mutually conditions of each other ; that a 
breach of any one article is a breach of the 
whole treaty ; and that a breach commit- 
ted by either of the parties absolves the 
others, and authorizes them, if they 
please, to pronounce the compact vio- 
lated and void. Should it unhappily be 
necessary to appeal to these delicate 
truths for a justification for dispensing 



with the consent of particular States to 
a dissolution of the federal pact, will not 
the complaining parties find it a difficult 
task to answer the multiplied and impor- 
tant infractions with which they may be 
confronted 1 The time has been when it 
was incumbent on us all to veil the ideas 
which this paragraph exhibits. The 
scene is now changed, and with it the 
part which the same motives dictate. 
The second question is not less delicate, 
and the flattering prospect of its being 
merely hypothetical forbids an over- 
curious discussion of it. It is one of 
those cases which must be left to pro- 
vide for itself. In general it may be ob- 
served, that although no political relation 
can subsist between the assenting and 
dissenting States, yet the moral relations 
will remain uncancelled. The claims of 
justice, both on one side and on the other, 
will be in force, and must be fulfilled ; the 
rights of humanity must in all cases be 
duly and mutually respected ; whilst con- 
siderations of a common interest, and 
above all the remembrance of the endear- 
ing scenes which are past, and the antici- 
pation of a speedy triumph over the ob- 
stacles to reunion, will, it is hoped, not 
urge in vain moderation on one side, and 
prudence on the other." Federalist, No. 
43 (\>y Madison). 

1 See this subject discussed in Gib- 
bons v. Ogden, 9 Wheat. 1. 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 11 

matters pertaining to external sovereignty; and that when the 
only three States which ever exercised complete sovereignty 
accepted the Constitution and came into the Union, on an equal 
footing with all the other States, they thereby accepted the same 
relative position to the general government, and divested them- 
selves permanently of those national powers which the others 
had never exercised. And the assent once given to the Union 
was irrevocable. "The Constitution in all its provisions looks 
to an indestructible Union composed of indestructible States." 1 / 
The government of the United States is one of enumerated 
powers; the national Constitution being the instrument which 
specifies them, and in which authority should be found for the 
exercise of any power which the national government assumes to 
possess. 2 In this respect it differs from the constitutions of the 
several States, which are not grants of powers to the States, 
but which apportion and impose restrictions upon the powers 
which the States inherently possess. The general purpose of 
the Constitution of the United States is declared by its founders 
to be, "to form a more perfect union, establish justice, insure 
domestic tranquillity, provide for the common defence, promote 
the general welfare, and secure the blessings of liberty to our- 
selves and our posterity." To accomplish these purposes, the 
Congress is empowered by the eighth section of article one : 

1 Chase, Ch. J., in Texas v. White, States respectively, or to the people." 
7 Wall. 700, 725. See United States v. No power is conferred by the Constitu- 
Cathcart, 1 Bond, 556. tion upon Congress to establish mere 

2 " The government of the United police regulations within the States. 
States can claim no powers which are United States v. Dewitt, 9 Wall. 41. Nor 
not granted to it by the Constitution ; is power conferred to provide for copy- 
and the powers actually granted must righting trademarks. Trademark Cases, 
be such as are expressly given, or given 100 U. S. 82. The fourteenth amend- 
by necessary implication." Per Marshall, ment does not take from the States police 
Ch. J., in Martin v. Hunter's Lessee, powers reserved to them at the time of 
1 Wheat. 304, 326. "This instrument the adoption of the Constitution. See 
contains an enumeration of the powers Slaughter House Cases, 16 Wall. 36; 
expressly granted by the people to their Barbier v. Connolly, 113 U. S. 27, 5 Sup. 
government." Marshall, Ch. J., in Gib- Ct. Rep. 367 ; Mugler v. Kansas, 123 
bonsr. Ogden, 9 Wheat. 1, 187. See Gal- U. S. 623, 8 Sup. Ct. Rep. 273. [But it 
der v. Bull, 3 Dall. 386; Briscoev. Bank of prevents their making, under the guise 
Kentucky, 11 Pet. 257; Gilman v. Phila- of police regulations, rules which abridge 
delphia, 3 Wall. 713 ; United States v. the liberty of the citizen to acquire con- 
Cruikshank, 92 U. S. 542, 650, 651, per tract rights outside his own State and to 
Waite, Ch. J. ; United States v. Harris, enjoy the same. Allgeyer v. Louisiana, 
106 U. S. 629, 1 Sup. Ct. Rep. 601 ; Weis- 165 U. S. 578, 17 Sup. Ct. Rep. p. 427, 
ter v. Hade, 52 Pa. St. 474 ; Sporrer v. rev. 48 La. Ann. 104, 18 S. W. 904. See 
Eifler, 1 Heisk. 633. The tenth amend- note, infra, 883.] 

ment to the Constitution provides that As to the general division of powers 

" the powers not delegated to the United between the Dominion of Canada and 

States by the Constitution, nor prohibited the provinces, see Citizens' Ins. Co. . 

by it to the States, are reserved to the Parsons, 4 Can. Sup. Ct 216. 



12 CONSTITUTIONAL LIMITATIONS. [CH. IL 

1. To lay and collect taxes, duties, imposts, and excises,- to 
pay the debts and provide for the common defence and general 
welfare of the United States. But all duties, imposts, and 
excises shall be uniform throughout the United States, (a) 

2. To borrow money on the credit of the United States. 

3. To regulate commerce with foreign nations and among the 
several States, and with the Indian tribes. 1 

4. To establish a uniform rule of naturalization, (i) and uni- 
form laws on the subject of bankruptcy, throughout the United 
States. 

5. To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures. 

6. To provide for the punishment of counterfeiting the secur- 
ities and current coin of the United States. 

7. To establish post-offices and post-roads. 2 

8. To promote the progress of science and the useful arts, by 
securing; for limited terms to authors and inventors the exclusive 
right to their respective writings and discoveries. 3 

1 Commerce on the high seas, though crimes by or against Indians. As to 

between ports of the same State, is held what lands of tribal Indians cannot be 

to be under the controlling power of Con- taxed by State, see Allen Co. Comrnrs. p. 

gress. Lord v. Steamship Co., 102 U. S. Simons, 129 Ind. 193, 28 N. E. 420, 13 

641. See cases infra, 688, 847. [Acts L. R. A. 512.] 

committed by Indians within the limits 2 As to the power to exclude matter 

of their reservations are not subject to from the mail, see Ex parte Jackson, 96 

the criminal laws of the State wherein U. S. 727. 

the reservation lies. State v. Campbell, This power is exclusive. The States 

53 Minn. 354, 55 N. W. 553, 21 L. R. A. cannot pass laws regulating the sale of 

169 and note on jurisdiction to punish patents. Hollida v. Hunt, 70 111. 109, 

(a) [Some interesting legal questions have grown out of the acquisition of the 
island of Porto Rico under the treaty with Spain, following the Spanish War, and 
among them the status of the island under the revenue clauses of the Constitution. 

In Downes v. Bid well, 182 U. S. 244, 21 Sup. Ct. Rep. 770, it is held that by the 
treaty of cession Porto Rico became territory appurtenant to the United States but 
not a part of it within the meaning of those clauses of the Constitution. That 
Section 8 of Article 1, requiring duties, imposts, and excises to be uniform " through- 
out the United States " did not apply to the island of Porto Rico. 

The other " Insular Cases," so called, involving the status of Porto Rico under the 
revenue clauses of the Constitution are De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. 
Rep. 743 ; Goetz v. United States and Grossman v. United States, 182 U. S. 221, 21 
Sup. Ct. Rep. 742; Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. Rep. 762; 
Armstrong v. United States, 243, and Huus v. New York & Porto Rico Steamship 
Company, 182 U. S. 392, 21 Sup. Ct. Rep. 827. The same doctrine with reference to 
the Phillipine Islands is announced in Dooley v. United States, 183 U. S. 151, 22 Sup. 
Ct. Rep. 62, and Fourteen Diamond Rings v. United States, 183 U. S. 176, 22 Sup. 
Ct. Rep. 69.] 

(l>) [Naturalization may be by treaty, and also by organic act creating a State. 
Boyd v. Nebraska, 143 U. S. 135, 12 Sup Ct. Rep. 375, and cases there cited. But 
such naturalization applies only to those who were citizens of the admitted territory 
or country at the time of such admission. Contzen v. United States, 179 U. S. 191, 
21 Sup. Ct. Rep. 98.3 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 13 

9. To constitute tribunals inferior to the Supreme Court; to 
define and punish piracies and felonies committed upon the high 
seas, and offences against the law of nations. 

10. To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water. 

11. To raise and support armies; but no appropriation of 
money to that use shall be for a longer term than two years. 

12. To provide and maintain a navy. 

13. To make rules for the government and regulation of the 
land and naval forces. 

14. To provide for calling forth the militia to execute the laws 
of the union, suppress insurrections, and repel invasions. 

15. To provide for organizing, arming, and disciplining the 
militia, and for governing such part of them as may be employed 
in the service of the United States, reserving to the States 
respectively the appointment of the officers, and the authority 
of training the militia according to the discipline prescribed by 
Congress. 1 

16. To exercise exclusive legislation in all cases whatsoever, 
over such district not exceeding ten miles square as may, by 
cession of particular States, and the acceptance of Congress, 
become the seat of government of the United States; and to 
exercise like authority over all places purchased by the consent 
of the legislature of the State in which the same shall be, for 
the erection of forts, magazines, arsenals, dockyards, and other 
needful buildings, (a) 

17. To make all laws which shall be necessary and proper 

22 Am. Rep. 63; Crittenden v. White, articles. Patterson . Kentucky, 11 Bush, 

23 Minn. 24, 23 Am. Rep. 676 ; Cranson 311 ; 21 Am. Rep. 220 ; s. c. in error, 97 
v. Smith, 37 Mich. 309, 26 Am. Rep. 514; U. S. 501; State v. Telephone Co., 36 
Ex parie. Robinson, 2 Hiss. 309 ; Woollen Ohio St. 296 ; 38 Am. Rep. 683. One 
v. Banker, 2 Flipp. 33, Swayne, J. In who peddles articles made under a patent 
some States, however, statutes are up- may be required to comply with an ordi- 
held which require that notes given for nance requiring licenses for all peddlers, 
a patent right shall express their purpose People v. Russell, 49 Mich. 617, 14 N. W. 
on the face of the paper. Tod v. Wick, 578. QState cannot require vendor of 
36 Ohio St. 370 ; Herdic v. Roessler, 109 patent-rights to take out license. Com. 
N. Y. 127, 16 N. E. 198; Shires v. Com., v. Petty, 96 Ky. 452, 29 S. W. 291, 29 
120 Pa. St. 368, 14 Atl. 251 ; New v. L. R. A. 786 ; and upon power of State 
Walker, 108 Ind. 365, 9 N. E. 386 ; QMa- over patent-rights, see note hereto in 
son v. McLeod, 57 Kan. 105, 45 Pac. 76, L. R. A.] 

41 L. R. A. 548, 57 Am. St. 327; Bohon's * Houston v. Moore, 5 Wheat. 1 ; Mar- 
Assignee v. Brown, 101 Ky. 354, 41 S. W. tin v. Mott, 12 Wheat. 19 ; Kneedler v. 
273, 38 L. R. A. 503.] The States may Lane, 45 Penn. St. 238 ; Dunne v. People, 
pass laws regulating the use of patented 94 111. 120, 34 Am. Rep. 213. 

(a) (^Perjury committed in a State court holden by permission of State law and 
of federal officials in a federal building, is not outside the jurisdiction of the State 
to punish. Exum v. State, 90 Tenn. 601, 17 S. W. 107, 15 L. B. A. 381-3 



14 CONSTITUTIONAL LIMITATIONS. [CH. II. 

for carrying into execution the foregoing powers, and all other 
powers vested by the Constitution in the government of the 
United States, or in any department or officer thereof. 1 

Congress is also empowered by the thirteenth, fourteenth, and 
fifteenth amendments to the Constitution to enforce the same by 
appropriate legislation. The thirteenth amendment abolishes 
slavery and involuntary servitude, (a) except as a punishment 
for crime, throughout the United States and all places subject 
to their jurisdiction. The fourteenth amendment (6) has several 
objects. 1. It declares all persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, to be 
citizens of the United States and of the State wherein they 
reside ;(c) and it forbids any State to make or enforce any law 

1 Within the legitimate scope of this expressly withheld from Congress by the 
grant Congress can determine for itself Constitution; we are irresistibly impelled 
what is necessary. Ex parte Curtis, 106 to the conclusion that the impressing 
U. S. 371. " Congress as the legislature upon the treasury notes of tlie United 
of a sovereign nation, being expressly States the quality of being a legal ten- 
empowered by the Constitution 'to lay der in payment of private debts is an 
and collect taxes, to pay the debts and appropriate means, conducive and plainly 
provide for the common defence and adapted to the undoubted powers of Con- 
general welfare of the United States,' gress, consistent with the letter and spirit 
and ' to borrow money on the credit of of the Constitution, and, therefore, within 
the United States,' and 'to coin money the meaning of that instrument, 'neces- 
and regulate the value thereof and of sary and proper for carrying into execu- 
foreign coin ; ' and being clearly author- tion the powers vested by this Constitu- 
ized, as incidental to the exercise of those tion in the government of the United 
great powers, to emit bills of credit, to States.' " Gray, J., in Legal Tender Case, 
charter national banks, and to provide a 110 U. S. 421. 

national currency for the whole people, Congress has implied power to protect 
in the form of coin, treasury notes, and voters at federal elections from intimi- 
national bank bills; and the power to dation : Ex parte Yarbrough, 110 U. S. 
make the notes of the government a legal 651 ; to protect the right to make home- 
tender in payment of private debts being stead entry upon public lands. United 
one of the powers belonging to sover- States v. Waddell, 112 U. S. 76. 
eignty in other civilized nations, and not 

(a) [This does not extend to the case of seamen compelled to serve in fulfilment 
of their contracts. Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. Rep. 326. Dissent 
by Harlan, J. But a law authorizing the hiring out of a vagrant to the highest bid- 
der for a specified term is void. Thompson v. Bunton, 117 Mo. 83, 22 S. W. 863, 20 
L. R. A. 462.] 

(6) EThe adoption of the fourteenth amendment has not extended to the several 
States of the Union the restrictions imposed by the first ten amendments to the 
Constitution of the United States upon the Federal Government. See Maxwell v. 
Dow, 176 U. S. 581, 20 Sup. Ct. Rep. 448; Brown v. New Jersey, 175 U. S. 172, 20 
Sup. Ct. Rep. 77; Leeper v. Texas, 139 U. S. 462, 11 Sup. Ct. Rep. 577; Caldwell v. 
Texas, 137 U. S. 692, 11 Sup. Ct. Rep. 224; Re Converse, 137 U. S. 624, 11 Sup. Ct. 
Rep. 191 ; Missouri v. Lewis, 101 U. S. 22 ; United States v. Cruikshank, 92 U. S. 
542 ; Slaughter House Cases, 16 Wall. 36.] 

(o) QA child of alien parentage born in this country is a citizen. Wong Kim 
Ark's Case, 169 U. S. 649, 18 Sup. Ct. Rep. 456. See Fong Yue Ting v. U. S., 149 
U. S. 698, 13 Sup. Ct. Rep. 1016.] 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 15 

which shall abridge the privileges or immunities of citizens of 
the United States, 1 or to deprive any person of life, liberty, or 
property, without due process of law, or to deny to any person 
within its jurisdiction the equal protection of the laws, (a) 

1 As to this clause, see p. 667, note 4, infra. 

(a) A discrimination between agricultural lands and other lands with regard to 
the right of a city to annex them by extension of its corporate limits so as to include 
them is no denial of the equal protection of the laws. A State may classify the 
objects of legislation so long as its attempted classification is not clearly arbitrary )- 
and unreasonable. Clark i;. Kansas City, 176 U. S. 114, 20 Sup. Ct. Rep. 284, aff. 
59 Kan. 427, 53 Pac. 468. Many cases upon the power of the legislature to annex 
rural lands to municipalities are collected in a note to this case in 44 L. ed. U. S. 392. 
Nor does a statute making a railroad company liable to an employee injured by the 
negligence of a fellow-servant deny to such company the equal protectioa of the 
laws, since there are peculiar hazards in the operation of a railroad which warrant 
the discrimination between railroad companies and ordinary employers in this regard. 
Tullis v. Lake Erie & Western R. Co., 175 U. S. 348, 20 Sup. Ct. Rep. 136. The 
act (Burns's An. Stat. of Ind., Rev. of 1894, 7083-7) applies in terms only to cor- 
porations. The point was raised in the defence that this discrimination between cor- 
porations operating railroads and other persons or associations operating railroads 
was unconstitutional, but it was not noticed by the court. That the exception of a 
dummy railroad operated by steam or of an electric railroad from an ordinance 
limiting the speed with which railroad trains may run within the city limits is not 
an arbitrary and unreasonable classification in denial of the equal protection of the 
laws, see Erb v. Morasch, 177 U. S. 584, 20 Sup. Ct. Rep. 819, aff. 60 Kan. 251, 56 
Pac. 133. On validity of ordinance requiring possession of good character and repu- 
tation in one seeking license to sell cigarettes and vesting mayor with power to deter- 
mine whether or not applicant possesses such, see Gundling v. Chicago, 177 U. S- 
183, 20 Sup. Ct. Rep. 633, aff. 176 111. 340, 52 N. E. 44. 

A county board of education maintained primary schools for white children and 
for negro children. They also maintained a high school for white children, but had 
discontinued a high school for negro children for the reason that the funds were 
needed for primary schools for a much larger number of negro children than attended 
the negro high school. Such discontinuance of high school privileges for negroes 
while high school privileges are continued for white children cannot be corrected by 
injunction against maintenance of high school for white children, and refusal to 
grant such injunction is no denial of the equal protection of the laws nor of any 
privileges and immunities of citizens of the United States. Gumming i;. Board of 
Education, 175 U. S. 528, 20 Sup. Ct. Rep. 197, aff. 103 Ga. 641, 29 S. E. 488. 

Upon equality of exemption under State taxation, see People v. Roberts, 171 U. S. 
658, 19 Sup. Ct. Rep. 58, aff. 91 Hun, 158, 149 N. Y. 608, 44 N. E. 1127. State may 
abridge right of trial by jury in city courts without making same provision for 
county courts, Chappell Chem. & Fertilizer Co. v. Sulphur Mines Co., 172 IJ. S. 474, 
19 Sup. Ct. Rep. 268, citing Hayes v. Missouri, 120 U. S. 68, 7 Sup. Ct. Rep. 350, and 
Missouri v. Lewis, 101 U. S. 22. Jury trial is not necessary in a commitment for 
contempt of court. Tinsley v. Anderson, 171 U. S. 101, 18 Sup. Ct. Rep. 805. Nor 
in disbarment proceedings, Shepard's Case, 109 Mich. 631, 67 N. W. 971. 

State may provide that plaintiff in an action against a railroad company for loss 
by fire caused by operation of the road shall, if successful, recover a reasonable 
attorney's fee in addition to damages, while, if unsuccessful, no attorney's fee shall 
be assessed against him. Atchison, T. & S. F. Ry. Co. v. Matthews, 174 U. S. 
96, 19 Sup. Ct. Rep. 609. See in this case a vigorous dissenting opinion of Harlan, 
J., concurred in by Brown, Peckham, and McKenna, JJ. That state may require 
railroad companies to pay discharged employees at regular rate until time of full 
payment, not to exceed sixty days after discharge, see St. Louis, L M. & S. R. 



16 CONSTITUTIONAL LIMITATIONS. [CH. II. 

2. It provides that when the right to vote at any election for 
the choice of electors (a) for President or Vice-President of the 

Co. v. Paul, 173 U. S. 404, 19 Sup. Ct. Rep. 419, aff. 64 Ark. 83, 40 S. W. 705, 37 
L. R. A. 504. 

A statute providing that if a tramp shall threaten to injure the person or property 
of any person he shall be imprisoned in the penitentiary, is not void as denying equal 
protection. State v. Hogan, 63 Ohio, 202, 58 N. E. 572, 81 Am. St. 626. The equal 
protection of the laws is not denied to negroes by those provisions of the Constitu- 
tion of Mississippi which place burdens and limitations upon persons subject to 
vices and guilty of crimes that are characteristic of the negro race, nor is there any 
discrimination thus brought about against the race itself. Williams v. Mississippi, 
170 U. S. 213, 18 Sup. Ct. Rep. 583. Or by a law requiring whites and negroes to 
occupy different compartments of passenger-cars. Plessy v. Ferguson, 163 U. S. 
637, 16 Sup. Ct. Rep. 1138. See Smith v. State, 100 Tenn. 494, 46 S. W. 566, and 
Anderson v. Louisville & N. Ry. Co., 62 Fed. 46. Accused cannot insist that his race 
be represented upon the jury, either trial or grand. Wood v. Brush, 140 U. S. 278, 
370, 11 Sup. Ct. Rep. 738, 942 ; Jugiro v. Brush, 140 U. S. 291, 11 Sup. Ct. Rep. 770. 

A State may abolish the fellow-servant rule with regard to a particular class of 
employers only, e.g. railroad companies. Chicago, K. & W. R. Co. v. Pontius, 157 
U. S. 209, 15 Sup. Ct. Rep. 585. State may provide that coming into court to chal- 
lenge the validity of an alleged service upon the defendant shall constitute a general 
appearance. York v. Texas, 137 U. S. 15, 11 Sup. Ct. Rep. 9; Kauffman v. Wooters, 
138 U. S. 285, 11 Sup. Ct. Rep. 298. Exemption by statute of " planters and farmers 
grinding and refining their own sugar and molasses " from a license tax upon per- 
sons and corporations carrying on the business of refining sugar and molasses is not a 
denial of the equal protection of the laws to the persons taxed. Am. Sugar Ref. Co. 
v. Louisiana, 179 D. S. 89, 21 Sup. Ct. Rep. 43. State may levy a specific tax 
upon persons engaged in the business of hiring laborers to be employed beyond the 
limits of the State, while levying none upon those hiring laborers to be employed 
within the State. Williams v. Fears, 179 U. S. 270, 21 Sup. Ct. Rep. 128, aff. 110 
Ga. 584, 35 S. E. 699. A person cannot complain that he is denied the equal protec- 
tion of the laws when valid laws are fairly administered as to him, although there is 
maladministration as to his neighbors, as, e g. by underassessment of property for 
taxation, New York v. Barker, 179 U. S. 279, 21 Sup. Ct. Rep. 121. The levy of a 
tax upon owners of lands abutting on streets along which conduits for public water 
supply run, in excess of that levied upon owners of lands not so located, upon the 
theory that better fire protection is afforded is unconstitutional. Lemont v. Jenks, 
197 111. 363, 64 N. E. 362. State may classify cities for regulation of registration of 
voters. Mason v. Missouri, 179 U. S. 328, 21 Sup. Ct. Rep. 125. In Cotting v. 
Kansas City Stock Yards Co. et al, 183 U. S. 79, 22 Sup. Ct. Rep. 30, a statute of 
Kansas defining what shall constitute public stock yards and regulating all charges 
thereof, is held to be in conflict with the fourteenth amendment for the reason that 
the definition of a " public stock yard " was made to depend upon the volume of 
business done and the facts showed that the Kansas City Stock Yards Co. was the 
only one within the definition, and the legislation was therefore a denial to the 
Kansas City Co. of the equal protection of the law. 

For other cases on " equal protection," see Lowe v. Kansas, 163 U. S. 81, 16 Sup. 
Ct. Rep. 1031 ; Jones v. Brim, 165 U. S. 180, 17 Sup. Ct. Rep. 282; Gulf, C. & S. F. 
R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. Rep. 255, rev. 87 Tex. 19 ; 26 S. W. 985 ; St. 
L. & S. F. R. Co. v. Mathews, 165 U. S. 1, 17 Sup. Ct. Rep. 243 ; Merchant v. Pa. R. Co., 
153 U. S. 380, 14 Sup. Ct. Rep. 894; Jennings v. Coal Ridge Imp. & Coal Co., 147 U. S. 
147, 13 Sup. Ct. Rep. 282; Fielden v. Illinois, 143 U. S. 452, 12 Sup. Ct. Rep. 528; 
Commercial Nat'l Bank v. Chambers, 182 U. S. 556, 21 Sup. Ct. Rep. 863, aff. 21 
Utah, 324, 61 Pac. 560; Estate of Mahoney, 133 Cal. 180, 65 Pac. 389, 85 Am. 
St. 155.] 

(a) The appointment and mode of appointment of electors from a State are 
within the power of the State acting in such manner as its legislature may direct; 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 



17 



United States, representatives in Congress, the executive and 
judicial officers of a State, or the members of the legislature 
thereof, is denied to any of the male inhabitants of such State, 
being twenty-one years of age, and citizens of the United States, 
or is in any way abridged, except for participation in rebellion 
or other crime, the basis of congressional representation therein 
shall be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State. 3. It disqualifies from 
holding Federal or. State offices certain persons who shall have 
engaged in insurrection or rebellion against the United States, 
or given aid or comfort to the enemies thereof. 4. It declares 
the inviolability of the public debt of the United States, and 
forbids the United States or any State assuming or paying any 
debt or obligation incurred in aid of insurrection or rebellion 
against the United States, or any claim for the loss or emanci- 
pation of any slave. 1 The fifteenth amendment declares that 



1 " That amendment was undoubtedly 
proposed for the purpose of fully pro- 
tecting the newly-made citizens of the 
African race in the enjoyment of their 
freedom, and to prevent discriminating 
State legislation against them. The gen- 
erality of the language used necessarily 
extends its provisions to all persons, of 
every race and color. Previously to its 
adoption, the Civil Rights Act had been 
passed, which declared that citizens of 
the United States of every race and 
color, without regard to any previous 
condition of slavery or involuntary servi- 
tude, except as a punishment for crime, 
should have the same rights in every 
State and Territory to make and enforce 
contracts, to sue, be parties, and give 
evidence, to inherit, purchase, lease, sell, 
own, and convey real and personal prop- 
erty, and to full and equal benefit of all 
laws and proceedings for the security of 
person and property as is enjoyed by 
white citizens, and should be subject to 
like punishments, pains, and pena'ties, 
and to none other. The validity of this 
act was questioned in many quarters, 
and complaints were made that, notwith- 



standing the abolition of slavery and in- 
voluntary servitude, the freedmen were 
in some portions of the country subjected 
to disabilities from which others were ex- 
empt. There were also complaints of the 
existence in certain sections of the South- 
ern States of a feeling of enmity, growing 
out of the collisions of the war, towards 
citizens of the North. Whether these 
complaints had any just foundation is im- 
material ; they were believed by many 
to be well founded, and to prevent any 
possible legislation hostile to any class 
from the causes mentioned, and to obvi- 
ate objections to legislation similar to 
that embodied in the Civil Rights Act, 
the fourteenth amendment was adopted. 
This is manifest from the discussions in 
Congress with reference to it. There was 
no diversity of opinion as to its object 
between those who favored and those who 
opposed its adoption." Mr. Justice Field 
in San Mateo County v. Sou. Pac. R. R. 
Co., 13 Fed. Rep. 722. 

"A State acts by its legislative, its 
executive, or its judicial authorities. It 
can act in no othe/ way. The constitu- 
tional provision, therefore, must mean 



and a law directing that one elector and one alternate shall be elected from each 
congressional district, and one elector and one alternate shall be elected at large in 
each of two districts into which the legislature divides the State for the purpose of 
electing the remaining two electors, is a valid exercise of the power of the legisla- 
ture in this regard. McPherson v. Blacker, 146 U. S. 1, 13 Sup. Ct. Rep. 3, aft 
92 Mich. 377, 52 N. W. 469, 16 L. R. A. 475, 31 Am. St. 587.] 

2 



18 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 



the right of citizens of the United States to vote shall not be 
denied or abridged by the United States or by any State, on 
account of race, color, or previous condition of servitude. 1 



that no agency of the State, or of the 
officers or agents by whom its powers are 
executed, sliall deny to any person within 
its jurisdiction the equal protection of the 
laws. Whoever by virtue of public posi- 
tion under a State government deprives 
another of property, life, or liberty with- 
out due process of law, or denies or takes 
away the equal protection of the laws, 
violates the constitutional inhibition ; and 
as he acts in the name and for the State, 
and is clothed with the State's authority, 
his act is that of the State. This must 
be so, or the constitutional prohibition has 
no meaning." Strong, 3., in Ex parte Vir- 
ginia, 100 U. S. 339. Approved, Neal v. 
Delaware, 103 U. S. 370, 397. An act 
of Congress declaring that certain acts 
committed by individuals shall be deemed 
offences and punished in the United States 
courts is invalid. The fourteenth amend- 
ment does not " invest Congress with 
power to legislate upon subjects which 
are within the domain of State legisla- 
tion ; but to provide modes of relief 
against State legislation or State action 
of the kinds referred to. It does not 
authorize Congress to create a code of 
municipal law for the regulation of pri- 
vate rights ; but to provide modes of re- 
dress against the operation of State laws 
and the action of State officers, executive 
and judicial, when these are subversive 
of the fundamental rights specified in 
the amendment." Bradley, J., in Civil 
Bights Cases, 109 U. S. 3, 3 Sup. Ct. 
Rep. 18. See also United States v. Har- 
ris, 106 U. S. 629, 1 Sup. Ct. Rep. 601 ; 
Baldwin v. Franks, 120 U. S. 678, 7 Sup. 
Ct. Rep. 656. But Congress may pun- 
ish the intimidation by individuals of 
voters at federal elections. Ex parte 
Yarbrough, 110 U. S. 651, 4 Sup. Ct. 
Rep. 152. 

1 See, as to these amendments, Story 
on Const. (4th ed.) c. 46, 47, 48, and App. 
to Vol. II. The adoption of an amend- 
ment to the Federal Constitution has the 
effect to nullify all provisions of State 
constitutions and State laws which con- 
flict therewith. Ex parte Turner, Chase 
Dec. 157; Neal v. Delaware, 103 U. S. 
370; Wood v. Fitzgerald, 3 Oreg. 568; 



Portland v. Bangor, 65 Me. 120, 20 Am. 
Rep. 681. See Griffin's Case, Chase Dec. 
368. The new amendments do not en- 
large the privilege of suffrage so as to 
entitle women to vote. Bradwell v. State, 
16 Wall. 130; Minor ;. Happersett, 21 
Wall. 162. They do not prevent a State 
forbidding a body to parade without 
license from the Governor. The privi- 
lege of citizens of the United States is not 
thereby infringed. Presser v. Illinois, 116 
U. S. 252, 6 Sup. Ct. Rep. 580. The four- 
teenth amendment does not entitle per- 
sons as of right to sell intoxicating drinks 
against the prohibitions of State laws; 
Bargprneyer v. Iowa, 13 Wall. 129 ; nor is 
property taken without due process of 
law by such a law, although without com- 
pensation an existing brewery is rendered 
valueless thereby: Mugler v. Kansas, 123 
U. S. 623, 8 Sup. Ct. Rep. 273; it is 
not violated by the grant by a State, 
under its police power, of an exclusive 
right for a term of years to have and 
maintain slaughter-houses, landings for 
cattle, and yards for inclosing cattle in- 
tended for slaughter, within certain speci- 
fied parishes : Slaughter House Cases, 16 
Wall. 36 ; nor by denying the right of 
jury trial in State courts : Walker v. 
Sauvinet, 92 U. S. 90 ; it does not pre- 
clude a State from taxing its citizens for 
debts owing to them from foreign debtors : 
Kirtland v. Hotchkiss, 100 U. S. 491; 
nor from regulating warehouse charges ; 
Munn v. Illinois, 94 U. S. 113; or charges 
for the transportation of freight and 
passengers by common carriers : Chicago, 
&c. R. R. Co. v. Iowa, 94 U. S. 155 ; Rail- 
road Com. Cases, 116 U. S. 307, 6 Sup. 
Ct. Rep. 388 ; Dow v. Beidleman, 125 U. S. 
680, 8 Sup. Ct. Rep. 1028; nor from mak- 
ing railroads, and not other masters, 
liable to servants for the negligence of 
fellow-servants : Missouri Pac. Ry. Co. 
v. Mackey, 127 U. S. 206, 8 Sup. Ct. Rep. 
1161; Minneapolis & St. L. Ry. Co. v. 
Herrick, id. 210 ; nor from giving double 
damages for killing stock through failure 
to fence : Missouri Pac. Ry. Co. v. Humes, 
116 U. S. 612, 6 Sup. Ct. Rep. 110; Min- 
neapolis & St. L. Ry. Co. v. Beck with, 
129 U. S. 26, 9 Sup. Ct. Rep. 3; nor from 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



19 



The executive power is vested in a president, who is made 
commander-iu-chief of the army and navy, and of the militia of 



requiring a railroad to pay for examina- 
tion of its servants for color-blindness : 
Nashville, C. & St. L. Ry. Co. v. Alabama, 
128 U. S. 96, 9 Sup. Ct. Kep. 28 ; contra, 
Louisville & N. R. R. Co. v. Baldwin, 85 
Ala. 619, 6 So. 311. 

The fourteenth amendment does not 
profess to secure to all persons in the 
United States the benefit of the same 
laws and the same remedies. Great di- 
versities may and do exist in these re- 
spects in different States. One may have 
the common law and trial by jury; an- 
other the civil law and trial by the court. 
But like diversities may also exist in dif- 
ferent parts of the same State. The States 
frame their laws and organize their courts 
with some regard to local peculiarities 
and special needs, and this violates no 
constitutional requirement. All that one 
can demand under the last clause of 1 
of the fourteenth amendment is, that he 
shall not be denied the same protection 
of the laws which is enjoyed by other 
persons or other classes in the same place 
and under like circumstances. Missouri 
v. Lewis, 101 U. S. 22 ; Hayes v. Missouri, 
120 U. S. 68, 7 Sup. Ct. Rep. 350. So 
railroads, as a class, may be taxed differ- 
ently from other property, and if the law 
provides for a hearing and judicial con- 
test, it is due process of law. Kentucky 
R. R. Tax Cases, 115 U. S. 321, 6 Sup. 
Ct. Rep. 57. 

The fourteenth amendment not only 
gave citizenship to colored persons, but 
by necessary implication it conferred 
upon them the right to exemption from 
unfriendly legislation against them dis- 
tinctively as colored, exemption from 
discriminations imposed by public author- 
ity which imply legal inferiority in civil 
society, lessen the security of their rights, 
and are steps towards reducing them to 
the condition of a subject race. The de- 
nial by State authority of the right and 
privilege in colored persons to participate 
as jurors in the administration of justice 
is a violation of this amendment. Strau- 
der v. West Virginia, 100 U. S. 303 ; Vir- 
ginia v. Rives, 100 U. S. 313 ; Ex pirte 
Virginia, 100 U. S. 339 ; Neal v. Dela- 
ware, 103 U. S. 370 ; FJBush v. Kentucky, 
107 U. S. 110, 1 Sup. Ct. Rep. 625 ; Gibson 



v. Mississippi, 162 U. S. 665, 16 Sup. Ct. 
Rep. 904; Carter v. Texas, 177 U. S. 442, 
20 Sup. Ct. Rep. 687. On negroes as grand 
jurors see note to 44 L. ed. U. S. 839. State 
may require negroes and whites to occupy 
separate compartments in passenger cars 
on roads operating wholly within the 
State. Plessy v. Ferguson, 163 U. S. 537, 
16 Sup. Ct. Rep. 1138, aff. 45 La. Ann. 80, 
11 So. 948,18 L. R. A. 639.] A trial jury 
may be made up entirely of whites, if ne- 
groes are not excluded from jury lists, but 
an indictment is bad,.if found by a grand 
jury on which whites only are allowed by 
law. Bush v. Kentucky, 107 U. S. 110, 
1 Sup. Ct. Rep. 625. See, further, United 
States v. Reese, 92 U. S. 214 ; QLewis v. 
State, 29 Tex. Ct. Ap. 201, 59 S. W. 1116, 
25 Am. St. 720. Negroes called for jury- 
service may be peremptorily challenged 
if peremptory challenges are not yet ex- 
hausted. Whitney v. State, Tex. Cr. 
Ap. , 63 S. W. 879.] A law prohib- 
iting adultery between a white and a 
negro under heavier penalty than be- 
tween two whites or two blacks, is valid. 
Pace v. Alabama, 106 U. S. 683, 1 Sup. 
Ct. Rep. 637. See Plunkard v. State, 67 
Md. 364. Since these amendments, as 
before, sovereignty for the protection of 
life and personal liberty within the re- 
spective States rests alone with the 
States ; and the United States cannot 
take cognizance of invasions of the privi- 
lege of suffrage when race, color, or pre- 
vious condition is not the ground thereof, 
United States v. Reese, 92 U. S. 214; 
United States v. Cruikshank, id. 542. 
Police regulations which affect alike all 
persons similarly situated are valid : 
Barbier v. Connolly, 113 U. S. 27, 5 Sup. 
Ct. Rep. 357 ; so of regulations of the 
practice of medicine : Dent v. West Vir- 
ginia, 129 U. S. 114, 9 Sup. Ct. Rep. 231 ; 
rjState v. Knowles, 90 Md. 646, 45 Atl. 
877, 49 L. R. A. 695 ;] but the adminis- 
tration of such police ordinances so as to 
deny to Chinese rights accorded to whites 
in similar circumstances is prohibited. 
Tick Wo v. Hopkins, 118 U. S. 356, 6 
Sup. Ct. Rep. 1064. 

Corporations are " persons " within the 
meaning of the amendment. Santa Clara 
Co. v. Southern Pac. R. R. Co., 118 U. S. 



20 



CONSTITUTIONAL LIMITATIONS. 



[OH. II. 



the several States when called into the service of the United 
States; and who has power, by and with the consent of the 



394, 6 Sup. Ct. Rep. 1132; Missouri Pac. 
Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. 
Ct. Rep. 1161 ; [[Smyth v. Ames, 169 U. S. 
466, 18 Sup. Ct. Rep. 418 ; Hawley v. 
Kurd et al., 72 Vt. 122, 47 Atl. 401. But 
are not " citizens " within the meaning 
of that term as used in the fourteenth 
amendment. Orient Ins. Co. v. Daggs, 
172 U. S. 557, 19 Sup. Ct. Rep. 281; 
Hawley v. Hurd et al., supra ;] but a for- 
eign corporation is not deprived of equal 
protection of the laws because it is taxed 
by the State at as high a rate as are cor- 
porations of that State in its home State. 
Phila. Fire Ass.r. New York, 119 U. S. 
110, 7 Sup. Ct. Rep. 108. 

The repeal of a limitation statute after 
a personal debt is barred by it, does not 
deprive the debtor of property without 
due process of law. Campbell v. Holt, 
115 U. S. 620, 6 Sup. Ct. Rep. 209. See, 
further, Railroad Co. v. Brown, 17 Wall. 
446 ; Kennard v. Louisiana, 92 U. S. 480; 
Pennoyer v. Neff, 95 U. S. 714 ; Pearson 
v. Yewdall, 95 U. S. 294; McMillen v. 
Anderson, 95 U. S. 37; Davidson v. New 
Orleans, 96 U. S. 97 ; Kirkland v. Hotch- 
kiss, 100 U. S. 491 ; Tennessee v. Davis, 
100 U. S. 257 ; Louisiana v. New Orleans, 
109 U. S. 285, 3 Sup. Ct Rep. 211 ; Prov- 
ident Inst. . Jersey City, 113 U. S. 506, 
5 Sup. Ct. Rep. 612; RoBards v. Lamb, 
127 U. S. 58, 8 Sup. Ct. Rep. 1031 ; Wal- 
ston v. Nevin, 128 U. S. 578, 9 Sup. Ct. 
Rep. 192; Freeland v. Williams, 131 U. S. 
405, 9 Sup. Ct. Rep. 794; Board of 
Com'rs v. Merchant, 103 N. Y. 143 ; State 
v. Ryan, 70 Wis. 676, 36 N. W. 823; 
Warren v. Sohn, 112 Ind. 213, 13 N. E. 
863 ; State v. Dent, 25 W. Va. 1 ; Allen 
v. Wyckoff, 48 N. J. L. 90, 2 Atl. 659. 
Upon what constitutes "due process of 
law," see cases collected in valuable 
notes upon this topic appended to 42 L. 
ed. U. S. 865, and 24 L. ed. U. S. 436 ; 
see also latter part of note 1, page 605, 
and note 1, page 568, post. Personal ser- 
vice on non-residents outside the jurisdic- 
tion of the court may, if reasonable time 
is given in which to appear and answer, be 
due process of law in a suit for the foreclos- 
ure of a lien upon land within the jurisdic- 
tion of the court ; but five days' notice, one 
of those days being a Sunday, is insuffi- 



cient when, with the utmost diligence and 
without any accident or delay whatever, 
the party notified could not reach the 
court with less than four days of constant 
travelling, and the fact that by the local 
practice there would be several days 
after return day before the case could be 
called for trial or default taken, or that 
the court would probably, in view of the 
circumstances, set aside any default that 
might have been entered, will not nega- 
tive this conclusion of insufficiency, since 
non-residents are not presumed to know 
the law and practice of the State. Roller 
v. Holly, 176 U. S. 398, 20 Sup. Ct. Rep. 
410, rev. 13 Tex. Civ. Ap. 636, 35 S. W. 
1074. " It is no longer open to contention 
that the due process clause of the four- 
teenth amendment . . . does not control 
mere forms of procedure in State courts or 
regulate practice therein. All its require- 
ments are complied with, provided, in the 
proceedings which are claimed not to 
have been due process of law, the person 
condemned has had sufficient notice, and 
adequate opportunity has been afforded 
him to defend. Iowa C. R. Co. v. Iowa, 
160 U. S. 389, 16 Sup. Ct. Rep. 344 ; Wil- 
son v. North Carolina, 169 U. S. 686, 18 
Sup. Ct. Rep. 435," per Mr Justice White 
in Louisville & N. R. Co. v. Schmidt, 
177 U. S. 230, 236, 20 Sup. Ct. Rep. 620, 
aff. 99 Ky. 148, 35 S. W. 135, 36 S. W. 
168. In this case the L. & N. R. Co. had 
been an actual defendant, although never 
served with notice and not a party to the 
record. After judgment it was brought 
in by rule to show cause and upon appear- 
ing and claiming a set-off it was con- 
demned to pay the judgment. The 
garnishment of a resident debtor of a 
non-resident defendant to reach a debt 
due from the latter who has no other 
property within the jurisdiction of the 
court does not deprive him of his property 
without due process of law, the situs of 
debt being, for purposes of attachment, 
with the debtor. King v. Cross, 175 U. S. 
396, 20 Sup. Ct. Rep. 131 ; Chicago, 
R. I. & P. R. Co. i>. Sturm, 174 U. S. 710, 
19 Sup. Ct. Rep. 797. Upon right to cor- 
rect gross undervaluations of property 
assessed for taxation in prior years, even 
when ownership has since changed, see 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



21 



Senate, to make treaties, provided two-thirds of the Senate 
concur, and, with the same advice and consent, to appoint 



Weyerhauser v. Minnesota, 176 U. S. 550, 
20 Sup. Ct. Rep. 485, aft. 72 Minn. 519, 
75 N. W. 718, in which right of State so 
to do is sustained. Assessment and col- 
lection of taxes upon money loaned 
within the State is not a taking without 
due process merely because creditor re- 
sides without the State, and such taxes if 
unpaid may be made a lien enforceable 
against estate of decedent creditor except 
as limited by Statute of Limitations. 
Bristol v. Washington County, 177 U. S. 
133, 20 Sup. Ct. Rep. 585. 

A State may tax the interest of the 
non-resident mortgagee of lands within 
its boundaries, even though he holds the 
mortgage at his residence. Savings & L. 
Society v. Multonomah County, 169 U. S. 
421, 18 Sup. Ct. Rep. 392. As to taxes 
on judgments, see Kingman Co. Com'rs 
v. Leonard, 57 Kan. 631, 46 Pac. 960, 34 
L. R. A. 810; moneys of non-residents 
deposited in State, Re Houdayer, 150 
N. Y. 37, 44 N. E. 718, 34 L. R. A. 235, 
65 Am. St. 642; place of taxation of 
trust property, Richmond County Acad. 
v. Augusta, 90 Ga. 634, 17 S. E. 61, 20 
L. R. A. 151, and note. Subjecting the 
logs of an individual who voluntarily 
runs them into a boom to a lien in favor 
of the surveyor-general for services of 
inspection compelled by law and ren- 
dered indiscriminately upon all logs in 
the boom is not a taking without due 
process. Lindsay & Phelps Co. v. Mul- 
len, 176 U. S. 120, 20 Sup. Ct. Rep. 
325. Legislation restricting a land- 
owner's right to permit natural gas to 
escape from his oil wells and go to waste 
does not deprive him of property without 
due process. Ohio Oil Co. v. Indiana, 177 
U. S. 190, 20 Sup. Ct. Rep. 576. Denying 
a right of action for defamatory words 
used in a pleading is not a taking of 
property without due process, even if 
reputation could be considered property. 
Abbott v. National Bank of Commerce, 
175 U. S. 409, 20 Sup. Ct. Rep. 153, aff. 
20 Wash. 552, 56 Pac. 376. On power of 
State to declare keeping of barber-shops 
open on Sunday not a work of charity or 
necessity, see Petit v. Minnesota, 177 
U. S. 164, 20 Sup. Ct. Rep. 666. On 
power of city to restrict prostitutes to 



certain localities, even though such re- 
striction depreciates the property in those 
localities, see L'Hote v. New Orleans, 177 
U. S. 587, 20 Sup. Ct. Rep. 788. Valid 
commitment for contempt does not de- 
prive of liberty without due process, and 
jury trial is unnecessary. Tinsley v. 
Anderson, 171 U. S. 101, 18 Sup. Ct. Rep. 
805. In the distribution of the assets of 
an insolvent, postponing a foreign corpo- 
ration's claims until after those of resi- 
dents of the State are satisfied, is not a 
denial of due process. Blake v. McClung, 
172 U. S. 239, 19 Sup. Ct. Rep. 165. Nor 
is making the face of the policy conclu- 
sive as to the value of the property 
insured in case of total loss. Orient In- 
surance Co. v. Daggs, 172 U. S. 557, 19 
Sup. Ct. Rep. 281, aff. 136 Mo. 382, 38 
S. W. 85, 35 L. R. A. 227, 58 Am. St. 
638. But see Missouri, K. & T. Ry. Co. 
v. Simonson, Kan. , 68 Pac. 653, where 
it is held that statute making state- 
ment of weight in a bill of lading conclu- 
sive evidence between the carrier and 
shipper was void. Nor is requirement of 
bond in attachment against a resident 
while none is required against a non-resi- 
dent. Central Loan & T. Co. v. Campbell 
Commn. Co., 173 U. S. 84, 19 Sup. Ct. 
Rep. 346. State may forfeit lands for 
non-payment of taxes if reasonable op- 
portunity is given the owner to redeem 
by payment of taxes and charges. King 
v . Mullins, 171 U. S. 404, 18 Sup. Ct. Rep. 
925. Consequential damage arising from 
allowing an obstruction of a street is not 
a taking without due process. Meyer i>. 
Richmond, 172 U. S. 82, 19 Sup. Ct. Rep. 
106. Discretion may be vested in a single 
officer to permit or refuse to permit a 
building to be moved through the streets. 
Wilson v. Eureka City, 173 U. S. 32, 19 
Sup. Ct. Rep. 317. State cannot impose 
upon a non-resident lot owner a liability 
in personam in respect of the lot. Dewey 
v. Des Moines, 173 U. S. 193, 19 Sup. Ct. 
Rep. 379. For note on what constitutes 
due process of law, see 2 L. R. A. 258. 
In appropriation under eminent domain, 
the State may provide that the appropri- 
ator may go into possession upon giving 
adequate security that the duly assessed 
compensation will be paid, and may also 



22 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 



ambassadors and other public ministers and consuls, judges of 
the Supreme Court, and other officers of the United States, 
whose appointments are not otherwise provided for. 1 

The judicial power of the United States extends to all cases (a) 
in law and equity arising under the national Constitution, the 



provide different tribunals for passing 
upon the necessity of the appropriation 
and upon the amount of compensation. 
Backus v. Fort St. Union Depot Co., 169 
U. S. 557, 18 Sup. Ct. Rep. 445. If dur- 
ing the pendency of an appeal, the day 
set for the execution of a death sentence 
passes, it is no denial of due process to 
set another day, particularly when such 
is in conformity to the statute of the 
State. Craemer o. Washington, 168 U. S. 
124, 18 Sup. Ct. Rep. 1. An information 
which charges a crime in the general 
words of a statute without specifying 
kind, quantity, price, etc., but sets out 
these and other particulars in a specifi- 
cation attached to the information, which 
specification the accused might lawfully 
require but has not in fact required, is not 
too defective to be due process. Hodgson 
v. Vermont, 168 U. S. 262, 18 Sup. Ct. 
Rep. 80, aff. 66 Vt. 134, 28 Atl. 1089. 
State may confiscate, without judicial 
process, nets and seines used in violation 
of its fish and game laws. Lawton o. 
Steele, 152 U. S. 133, 14 Sup. Ct. Rep. 
499, aff. 119 N. Y. 226, 23 N. E. 878, 7 
L. R. A. 134. Indictment by grand jury 
not necessary. McNulty v. California, 
149 U. S. 645, 13 Sup. Ct. Rep. 959, aff. 93 
Cal. 427, 26 Pac. 597, 29 Pac. 61. State 
can impeach title to lands granted by it 
only by suing in equity. A second patent 
to the lands issued before such impeach- 
ment of the former is void. Chandler v. 
Calumet & H. M. Co., 149 U. S. 79, 13 
Sup. Ct. Rep. 798; Noble v. Union Riv. 
Logging R. Co., 147 U. S. 165, 13 Sup. 
Ct. Rep. 271. 

The State may provide that the acts of 
its de facto officers shall be valid. Man- 
ning r. Weeks, 139 U. S. 504, 11 Sup. Ct. 
Rep. 624. An erroneous decision upon a 



matter within the jurisdiction of the 
court is not a denial of due process. 
Ex parte Converse, 137 U. S. 624, 11 Sup. 
Ct. Rep. 191. Execution of a criminal 
by one officer or another, the executioner 
being duly appointed under the statute, is 
no part of due process. Davis v. Burke, 
179 U. S. 399, 21 Sup. Ct. Rep. 210. For 
other important cases on due process, see 
Missouri Pac. Ry. v. Nebraska, 164 U. S. 
403, 17 Sup. Ct. Rep. 130; Allen v. Geor- 
gia, 166 U. S. 138, 17 Snp. Ct. Rep. 525; 
Lowe v. Kansas, 163 U. S. 81, 16 Sup. Ct. 
Rep. 1031 ; Jones v. Brim, 165 U. S. 180, 
17 Sup. Ct. Rep. 282 ; Kohl v. Lehlback, 
160 U. S. 293, 16 Sup. Ct. Rep. 304; 
Winona & St. Peter Land Co. v. Minne- 
sota, 159 U. S. 526, 16 Sup. Ct. Rep. 83; 
Hamilton v. Brown, 161 U. S. 256, 16 
Sup. Ct. Rep. 685; Iowa C. Ry. Co. v. 
Iowa, 160 U. S. 389, 16 Sup. Ct. Rep. 344; 
Cram v. United States, 162 U. S. 625, 16 
Sup. Ct. Rep. 952 ; Owens v. Henry, 161 
U. S. 642, 16 Sup. Ct. Rep. 693; Andrews 
v. Swartz, 156 U. S. 272, 15 Sup. Ct. Rep. 
389; Bergeman v. Backer, 157 U. S. 655, 
15 Sup. Ct. Rep. 727; Duncan v. Mis- 
souri, 152 U. S. 377, 14 Sup. Ct. Rep. 570; 
McKane v. Durston, 153 U. S. 684, 14 
Sup. Ct. Rep. 913 ; Marchant v. Penn. Ry. 
Co., 153 U. S. 380, 14 Sup. Ct. Rep. 894; 
Giozza v. Tiernan, 148 U. S. 657, 13 Sup. 
Ct. Rep. 721 ; Passavant v. United States, 
148 U. S. 214, 13 Sup. Ct. Rep. 572; 
Paulsen v. City of Portland, 149 U. S. 30, 
13 Sup. Ct. Rep. 750 ; Schwab v. Berg- 
gren, 143 U. S. 442, 12 Sup. Ct. Rep. 525; 
Davis v. Texas, 139 U. S. 651, 11 Sup. 
Ct. Rep. 675 ; Leeper v. Texas, 139 U. S. 
462, 11 Sup. Ct. Rep. 577; Lent v. Till- 
son, 140 U. S. 316, 11 Sup. Ct. Rep. 825. 
See also cases in note 1, page 568, postJ] 
1 U. S. Const, art. 2. 



(a) fjlncludes a proceeding for mandamus. Am. Express Co. v. Michigan, 177 
U. S. 404, 20 Sup. Ct. Rep. 695, reversing 118 Mich. 682, 77 N. W. 317. "Judicial 
power of United States extends only to the trial and determination of ' cases ' in courts 
of record, and . . . Congress is still at liberty to authorize the judicial officers of the 
several States to exercise such power as is ordinarily given to officers of courts, not of 
record ; such, for instance, as the power to take affidavits, to arrest and commit for 
trial offenders against the laws of the United States, to naturalize aliens, and to per- 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 23 

laws of the United States, and treaties made, or which shall be 
made, under their authority; to all cases affecting ambassadors, 
other public ministers and consuls; (a) to all cases of admiralty 
and maritime jurisdiction; (6) to controversies to which the 
United States shall be a party ;(V) to controversies between two 
or more States ; between a State and citizens of another State ; 
between citizens of different States ; between citizens of the 
same State claiming lands under grants of different States; and 
between a State or citizens thereof and foreign States, citizens 
or subjects. 1 But a State is not subject to be sued in the courts 
of the United States by citizens of another State, or by citizens 
or subjects of any foreign State. 2 

1 U. S. Const, art. 3, 2. A State can- conspiring to kill one in the custody of 

not make it a condition to the doing of the United States Marshal. Logan v. 

business by a foreign corporation within United States, 144 U. S. 263, 12 Sup. Ct. 

its limits that the corporation shall agree Rep. 617. A mere maladministration of 

not to remove cases against it to the Fed- the quarantine laws of one State to the 

eral courts. Barron v. Burnside, 121 injury of the citizens of another does not 

U. S. 186, 7 Sup. Ct. Rep. 931 ; Goodrel constitute a controversy among States. 

v. Kreichbaum, 70 Iowa, 362, 30 N. W. Louisiana v. Texas, 176 U. S. 1, 20 Sup. 

872. See Elston v. Pigsott, 94 Ind. 14. Ct. Rep. 251. Application of interstate 

Congress may vest exclusive jurisdic- commerce to a Federal court for the pun- 
tion in Federal courts of suits arising ishment of disobedience of the command 
from acts done under color of authority of the subpoena of the commission is not 
of the United States, and may regulate a "case" within the meaning of the 
all incidents of such suits. Mitchell v. Constitution, and the court has not juris- 
Clark, 110 U. S. 633, 4 Sup. Ct. Rep. 170. diction. Re Inter-State Commerce Corn- 
So, in an action to recover money exacted mission, 53 Fed. 476.] 
by a customs collector, the United States 2 U. S. Const, llth Amendment. But 
limitation law governs. Arnson v. Mur- a suit in a State court, to which a State is 
phy, 109 U. S. 238, 3 Sup. Ct. Rep 184. a party, may be removed to the Federal 
["Federal courts have jurisdiction in a court for trial if a federal question is in- 
case of conspiracy, charging persons with volved. Railroad Co. v. Mississippi, 102 

form such other duties as may be regarded as incidental to the judicial power rather 
than a part of the judicial power itself." Robertson v. Baldwin, 165 U. S. 275, 17 
Sup. Ct. Rep. 326, holding that Congress may authorize justices of the peace to 
arrest deserting seamen and return them to their ships.] 

(a) rjlf a consul wishes to enjoy his exemption from the jurisdiction of a State 
court, he must specially plead it, and must plead it at the proper time. Wilcox v. 
Luco, 118 Cal. 639, 45 Pac. 676, 60 Pac. 758, 45 L. R. A. 579, 62 Am. St. 305, upon 
privileges and exemptions of consuls, see note to this case in L. R. A. And upon 
jurisdiction of consuls over actions between citizens of their own nations, temporarily 
in a State, to the exclusion of the State courts, see Telefsen v. Fee, 168 Mass. 188, 
46 N. E. 562, 45 L. R. A. 481 and note, 60 Am. St. 379.] 

(b) A bill to enforce a lien for towage by foreclosure of the lien on a raft of lum- 
ber in complainant's possession, the suit being brought against individual defendants 
and seeking a decree against them and in default of payment a sale of the lumber to 
satisfy it is not a proceeding in rem within exclusive admiralty jurisdiction, but is a 
suit in personam and may be brought in a State court. Knapp, Stout, &c. Co. v. 
McCaffrey, 177 U. S. 638, 20 Sup. Ct. Rep. 824, aff. 178 111. 107, 52 N. E. 898; 69 Am. 
St. 290.] 

(c) F^This includes a suit by the United States against a State. United States 
Texas, 143 U. S. 621, 12 Sup. Ct. Rep. 488.] 



24 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 



The Constitution and the laws of the United States, made in 
pursuance thereof, and all treaties made under the authority of 
the United States, are declared to be the supreme law of the 
land ; 1 and the judges of every State are to be bound thereby, 



U. S. 135. That States are not suable 
except with their own consent, see Rail- 
road Co. v. Tennessee, 101 U. S. 337; 
Railroad Co. r. Alabama, 101 U. S. 832. 
A State by appearing in a suit against it 
may waive its immunity. Clark v. Bar- 
nard, 108 U. S. 436, 2 Sup. Ct. Rep. 878. 
It may attach any conditions it pleases 
to its consent. DeSaussure v. Gaillard, 
127 U. S. 216, 8 Sup. Ct. Rep. 1053. But 
apart from such conditions its liability 
must be determined like that of an in- 
dividual. Green v. State, 73 Cal. 29, 11 
Pac. 602, 14 Pac. 610; Bowen v. State, 

108 N. Y. 166, 15 N. E. 56. [Statutes per- 
mitting suits against the State are to be 
strictly construed. Interest is not allow- 
able on the claim unless the statute ex- 
pressly so provides. Western & A. R. Co. 
v. State, Ga. , 14 L. 11. A. 438. And 
upon suits against a State, see in general, 
Carr v. State, 127 Ind. 204, 26 N. E. 778, 
11 L. R. A. 370 and note ; 22 Am. St. 
624 ; Hans v. Louisiana, 134 U. S. 1, 10 
Sup. Ct. Rep. 504 ; North Carolina c. 
Temple, 134 U. S. 22, 10 Sup. Ct. Rep. 
509. A suit by one State against another 
will not lie, if in legal effect prosecuted 
in the name of the State by citizens 
thereof as the real parties in interest. 
New Hampshire v. Louisiana, 108 U. S. 
76. A suit nominally against an officer, 
but really against a State, to enforce per- 
formance of its obligation in its political 
capacity, will not lie. Louisiana v. Jumel, 
107 U. S. 711, 2 Sup. Ct. Rep. 128; Ha- 
good v. Southern, 117 U. S. 52, 6 Sup. Ct. 
Rep. 608 ; In re Ayers, 123 U. S. 443, 8 
Sup. Ct. Rep. 104 ; [Smith v. Reeves, 178 
U. S. 436, 20 Sup. Ct. Rep. 919. And as 
to suits against States, see notes to 33 L. 
ed. U. S. 842; 11 L. R. A. 370; 8 L. R. 
A. 399. See also Fitts v. McGhee, 172 
U. S. 516, 19 Sup. Ct. Rep. 269.] Other- 
wise if officers, claiming to act as such, 
invade private right under color of un- 
constitutional laws. United States v. 
Lee, 106 U. S. 196, 1 Sup. Ct. Rep. 240 ; 
Cunningham v. Macon, &c. R. R. Co., 

109 U. S. 446, 3 Sup. Ct. Rep. 292; 
Poindexter v. Greenhow, 114 U. S. 270, 
5 Sup. Ct. Rep. 903, 962; [Smyth v. 



Ames, 169 U. S. 466, 18 Sup. Ct. Rep. 
418 ; Scott v. Donald, 165 U. S. 58, 107, 
17 Sup. Ct. Rep. 265, 262 ; Reagan v. 
Farmers' L. & J. Co., 154 U. S. 362, 14 
Sup. Ct. Rep. 1047 ; Ex pane Tyler, 149 
U. S. 164, 13 Sup. Ct. Rep. 785 ; Pen- 
noyer v. McConnaughy, 140 U. S. 1, 11 
Sup. Ct. Rep. 699. Where individuals 
claiming to be in possession as officers of 
a State, holding for the State, are sued in 
an action of ejectment and the State does 
not intervene and become a party to the 
record, the suit is not one against the 
State. Tindal v. Wesley, 167 U. S. 204, 

17 Sup. Ct. Rep. 770.] See Antoni v. 
Greenhow, 107 U. S. 769, 2 Sup. Ct. Rep. 
91. Allen v. Baltimore & O. R. R. Co., 
114 U. S. 311, 6 Sup. Ct. Hep. 425, 962. 
An action lies to compel an officer to do 
what the statute requires. Rolston o. 
Missouri Fund Cora'rs, 120 U. S. 390, 
7 Sup. Ct. Rep. 599. No claim arises 
against any government in favor of an 
individual, by reason of the misfeasance, 
laches, or unauthorized exercise of power 
by its officers or agents. Gibbons v. 
United States, 8 Wall. 269 ; Clodfelter v. 
State, 86 N. C. f>l, 53; Langford v. United 
States, 101 U. S. 341. [Upon what claims 
constitute valid demands against a State, 
see Northwestern & P. H. Bank v. State, 

18 Wash. 73, 50 Pac. 586, 42 L. R. A. 33, 
and note. See, on suits against a State, 
34 Am. L. Rev. 670.] 

1 "The United States is a government 
with authority extending over the whole 
territory of the Union, acting upon the 
States and the people of the States. 
While it is limited in the number of its 
powers, so far as its sovereignty extends 
it is supreme. No State government can 
exclude it from the exercise of any au- 
thority conferred upon it by the Consti- 
tution, obstruct its authorized officers 
against its will, or withhold from it for 
a moment the cognizance of any subject 
which that instrument has committed to 
it." Strong, J., in Tennessee v. Davis, 
100 U. S. 257, 263. [Iowa statute exclud- 
ing aliens from holding lands is overridden 
by treaty with Bavaria. Opel v. Shoup, 
100 Iowa, 407, 69 N. W. 560, 37 L. R. A. 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



25 



any thing in the constitution or laws of any State to the contrary 
notwithstanding. 1 

It is essential to the protection of the national jurisdiction, 
and to prevent collision between State and national authority, () 



683. And the Louisiana statute taxing 
inheritances and legacies, received by 
foreigners is overridden by the treaty 
with Italy. Succession of Rixner, 48 La. 
Ann. 552, 19 So. 697, 82 L. R. A. 177; 
upon effect of treaties upon aliens' right 
to inherit, see note hereto in L. R. A.] 

1 U. S. Const, art. 6; Owings r. Nor- 
wood's Lessee, 5 Cranch,344; McCulloch 
v. Maryland, 4 Wheat. 316; Foster v. 
Neilson, 2 Pet. 253, 314; Cook v. Moffat, 
6 How. 295; Dodge v, Woolsey, 18 How. 
331. A State constitution cannot pro- 
hihit federal judges from charging juries 
as to matters of fact. St. Louis, &c. Ry. 
Co. v. Vickers, 122 U. S. 360, 7 Sup. Ct. 
Rep. 1216. Congress may empower a 
corporation to take soil under navigable 
water between two States for the build- 
ing of a bridge for use in interstate com- 
merce, although the legislature of one of 
the States protests against it. Decker 
v. Baltimore, &c. R. R. Co , 30 Fed. Kep. 
723. When a treaty has been ratified 
by the proper formalities, it is, by the 
Constitution, the supreme law of the 
land, and the courts have no power to 
inquiie into the authority of the persons 
by whom it was entered into on behalf 
of the foreign nation. Doe v. Braden, 
16 How. 635, 657 ; or the powers or rights 
recognized by it in the nation with which 
it was made. Maiden v. Ingersoll, 6 



Mich. 373. Its force is such that it may 
even take away private property with- 
out compensation. Cornet v. Winton, 2 
Yerg. 143. It may operate retroactively. 
Hauenstein v. Lynham, 100 U. S. 483. 
A State law in conflict with it must give 
way to its superior authority. Ware r. 
Hylton, 3 Dall. 99 ; Yeaker v. Yeaker, 4 
Met. (Ky.) 33 ; People v. Gerke, 5 Cal. 381. 
So, a provision in a State constitution. 
Parrott's Chinese Case, 6 Sawy. 349. 
See, further, United States r. Aredondo, 

6 Pet. 691 ; United States v. Percheman, 

7 Pet. 61 ; Garcia v. Lee, 12 Pet. 511 ; 
Hauenstein v. Lynham, 100 U. S. 483 ; 
Ropes v. Clinch, 8 Blatch. 304 ; United 
States v. Tobacco Factory, 1 Dill. 264; 
The Cherokee Tobacco, 11 Wall. 616. 
In this last case it is decided, as before it 
had been at the Circuit, that a law of 
Congress repugnant to a treaty, to that 
extent abrogates it. To the same effect 
are Head Money Cases, 112 U. S. 580, 
6 Sup. Ct. Rep. 247 ; Whitney v. Robert- 
son, 124 U. S. 190, 8 Sup. Ct. Rep. 456 ; 
Chinese Exclusion Case, 130 U. S. 581, 
9 Sup. Ct. Rep. 623. FJA provision of a 
State constitution against limitation of 
liability for injuries resulting in death is 
overridden by an act of Congress permit- 
ting such limitation in maritime affairs. 
Loughin v. McCaulley, 186 Pa. 517, 40 
Atl. 1020, 48 L. R. A. 33, 65 Am. St. 872.] 



(a) FJ" The possession of the res vests the court which has first acquired jurisdic- 
tion with the power to hear and determine all controversies relating thereto, and for 
the time being disables other courts of co-ordinate jurisdiction from exercising a like 
power. This rule is essential to the orderly administration of justice, and to prevent 
unseemly conflicts between courts whose jurisdiction embraces the same subjects and 
persons. Nor is this rule restricted in its application to cases where property has 
been actually seized under judicial process before a second suit is instituted in an- 
other court, but it often applies as well where suits are brought to enforce liens 
against specific property, to marshal assets, administer trusts, or liquidate insolvent 
estates, and in suits of a similar nature where, in the progress of the litigation, the 
court may be compelled to assume the possession and control of the property to be 
affected. The rule has been declared to be of especial importance in its application 
to Federal and State courts. Peck v. Jenness, 7 How. 612; Freeman v. Howe, 24 
How. 450; Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. Rep. 1019; Central Nat'l 
Bank v. Stevens, 169 U. S. 432, 18 Sup. Ct. Rep. 403; Harkrader v. Wadley, 172 
U. S. 148, 19 Sup. Ct. Rep. 119." Per Shiras, J., in Farmers' Loan & T. Co. v. Lake 
St. Elevated R. Co., 177 U. S. 51, 20 Sup. Ct. Rep. 564, rev. 173 111. 439, 61 N. E. 55. 
Under U. S. Rev. Stat. 720, a Federal court is precluded from granting an in June- 



26 CONSTITUTIONAL LIMITATIONS. [CH. II. 

that the final decision upon all questions arising in regard thereto 
should rest with the courts of the Union; 1 and as such questions 

1 Martin v. Hunter's Lessee, 1 Wheat, tain act of legislature does not impair ob- 

304, 334 ; Cohens v. Virginia, 6 Wheat, ligation of contract raises a federal ques- 

264 ; Bank of United States v. Norton, 3 tion, see Walsh v. Columbus, H. V. & A. R. 

Marsh. 423 ; Braynard v. Marshall, 8 Pick. Co., 176 U. S. 469, 20 Sup. Ct. Rep. 393 ; 

194, per Parker, Ch. J., Spangler's Case, also Bellingham Bay & B. C. R. Co. v. 

11 Mich. 298; Tarble's Case, 13 Wall. New Whatcom, 172 U.S. 314, 19 Sup. Ct. 

397 ; Tennessee v. Davis, 100 U. S. 257. Rep. 205. Whether an act, authorized 

QUpon necessity of federal question in by legislation decided by the courts of a 

jurisdiction of Federal over State courts, State to be in conformity to its Consti- 

see notes to 42 L. ed. U. S. 998, and 37 tution, amounts to a taking of property 

L. ed. U. S. 267. Upon what is federal without due process is a federal question, 

question, see note to 39 L. ed. U. S. 884. Wheeler v. N. Y. ( N. H. & H. R. Co., 178 

That decision by a State court that a cer- U. S. 321, 20 Sup. Ct. Rep. 949J 

tion against enforcing claims against Indians in a State court. U. S. v. Parkhurst- 
Davis Mercantile Co., 176 U. S. 317, 20 Sup. Ct. Rep. 423. See, upon injunctions 
restraining proceedings in State courts, notes to 16 C. C. A. 90, and 27 C. C. A. 575. 
No State court has authority to order execution against a national bank in the 
hands of a receiver for the enforcement of a lien in attachment against the bank as 
garnishee, even though the lien were obtained before the receiver's appointment. 
Earle v. Pennsylvania, 178 U. S. 449, 20 Sup. Ct. Rep. 915. But the State court 
may entertain an action in attachment against such bank and its receiver, and the 
receiver must report such fact and the judgment upon the action to the Comptroller 
of the Currency whose duty it is to hold the proceeds of the bank's assets subject 
to all rights acquired by the plaintiff through the attachment proceedings. Earle v. 
Pennsylvania, above; Earle r. Con way, .178 U. S. 456, 20 Sup. Ct. Rep. 918, aff. 189 
Pa. 610, 42 All. 303. A Federal court controlling receivership of bank cannot restrain 
a prosecution brought by State against an officer of the bank for crime committed 
in respect to the bank property before the civil suit was brought. Harkrader v. 
Wadley, 172 U. S. 148, 19 Sup. Ct. Rep. 119. A receiver appointed by a Federal 
court voluntarily going into a State court cannot question the right of the State 
court to determine the controversy. Grant v. Buckner, 172 U. S. 232, 19 Sup. Ct. 
Rep. 163, aff. 49 La. Ann. 668, 21 So. 580. A State court cannot compel the com- 
plainants in a suit pending in a Federal court to come into the State court and there 
relitigate the question in controversy in the Federal court, nor can it by injunction 
restrain them from proceeding under the final decree of sale of the Federal court, 
and from enforcing the other remedies adjudged to them by that decree. Central 
Nat. Bk. v. Stevens, 169 U. S. 432, 18 Sup. Ct. Rep. 403. Proceedings in rem for the 
enforcement of a lien against a vessel given by a State statute for repairs made upon 
her in her home port under contract with her owners or their agent are within the 
exclusive jurisdiction of the Federal courts, being in admiralty. The Glide, 167 
U. S. 606, 17 Sup. Ct. Rep. 930, rev. 167 Mass. 525, 33 N. E. 163, 159 Mass. 60, 34 
N. E. 258. That such lien will be enforced in admiralty, see The J. E. Rumbell, 148 
U. S. 1, 13 Sup. Ct. Rep. 498. The same act may be a crime against both a State 
and the United States, and each then has jurisdiction to punish it. Crossley v. Cali- 
fornia, 168 U. S. 640, 18 Sup. Ct. Rep. 242, 8. c. below; People v. Worden, 113 Cal. 
569, 45 Pac. 844. Where the question of the validity of a patent arises collaterally, 
the State court has jurisdiction to pass upon it. Pratt v. Paris Gaslight & Coke 
Co., 168 U. S. 255, 18 Sup. Ct. Rep. 62: see also Marsh v. Nichols, Shepard and Co., 
140 U. S. 344, 11 Sup. Ct. Rep. 798. The rights of riparian owners are determined 
by the State law. St. Anthony Falls Water Power Co. v. Board of Water Com'rs, 
168 U. S. 349, 18 Sup. Ct. Rep. 157; Eldredge v. Trezevant, 160 U. S. 452, 16 Sup. 
Ct. Rep. 245. State courts have jurisdiction of crimes committed on Indian reser- 
vations where crime is neither by nor against Indians. Draper v. United States, 164 
U. S. 240, 17 Sup. Ct. Rep. 107. National banks are subject to State authority in 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 27 

must frequently arise first in the State courts, provision is made 
by the Judiciary Act for removing to the Supreme Court of the 

all respects except where the attempted exercise of such authority "expressly 
conflicts with the laws of the United States, and either frustrates the purpose of the 
national legislation, or impairs the efficiency of these agencies of the Federal govern- 
ment to discharge the duties for the performance of which they were created." 
Davis v. Elmira Sav. Bk., 161 U. S. 283, 16 Sup. Ct. Rep. 502 ; and the power vested 
in a national bank by federal law to take property " such as shall be conveyed to it 
in satisfaction of debts previously contracted in the course of its dealings" is not 
infringed by a State statute making such conveyances voidable in case of insolvency 
within a limited period thereafter by the transferor. McClellan v. Chipman, 164 
U. S. 347, 17 Sup. Ct. Rep. 85. Appointment of a receiver by a Federal court does 
not divest a State court of its previously acquired control of the assets of a corpora- 
tion. Mo. Pac. R. Co. v. Fitzgerald, 160 U. S. 556, 16 Sup. Ct. Rep. 389 ; Shields v. 
Coleman, 157 U. S. 168, 15 Sup. Ct. Rep. 670. Upon effect of judgment of State 
court upon United States title to lands, see Stanley v. Schwalby, 162 U. S. 255, 16 
Sup. Ct. Rep. 754. Federal court will not revise views of State court upon principles 
of general law. Sayward v. Denny, 158 U. S. 180, 15 Sup. Ct. Rep. 777. State 
decisions control interpretation of wills. Roberts v. Lewis, 153 U. S. 367, 14 Sup. 
Ct. Rep. 945. When a Federal court of competent jurisdiction has acquired posses- 
sion of property, and is proceeding to determine a controversy concerning it, a State 
court cannot enjoin the plaintiffs in the Federal court from proceeding in the case. 
Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. Rep. 1019, rev. 136 N. Y. 169, 32 N. E. 
623,20 L. R. A. 391. A State court cannot adjudicate upon a maritime lien, nor can 
any action of such court divest property of such lien when it has once attached. 
Moran v. Sturges, above. State statutes of limitation are not binding upon the 
United States, but the United States may take advantage of them. Stanley v. 
Schwalby, 147 U. S. 608, 13 Sup. Ct. Rep. 418. Although the statutes of the State 
regulate the administration and descent of the assets of descendants, and exclusive 
jurisdiction of such matters may be conferred upon the State's probate courts, so far 
as its own citizens are concerned, the Federal courts have jurisdiction to adjudicate 
upon claims concerning sucli assets as between citizens of different States. Hayes 
v. Pratt, 147 U. S. 557, 13 Sup. Ct. Rep. 503. But if the probate court has secured 
possession of the assets, the Federal court cannot deprive it of such possession. 
Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. Rep. 906 ; see the dissenting opinion 
of Mr. Justice Shims in this case, concurred in by Chief Justice Fuller. The juris- 
diction of the Federal courts over suits between citizens of different States cannot be 
impaired by any statutory regulations of a State concerning the manner in which 
the validity of demands against its counties shall be established. Chicot County ". 
Sherwood, 148 U. S. 529, 13 Sup. Ct. Rep. 695. In absence of congrefsional legis- 
lation Federal courts follow State statutes of limitation. Bauserman v. Blunt, 147 
U. S. 647, 13 Sup. Ct. Rep. 466. Federal courts will not entertain suit against a 
receiver appointed by State court without permission of such court. Porter v. Sabin, 
149 U. S. 473, 13 Sup. Ct. Rep. 1008. Property in the hands of a receiver of a Federal 
court cannot be levied upon by a State officer to enforce the payment of taxes. Ex 
parte Tyler, 149 U. S. 164, 13 Sup. Ct. Rep. 785. Assignee in bankruptcy is bound 
if he appears in a State court -and answers. Ludeling v. Chaffe, 143 U. S.301, 12 
Sup. Ct. Rep. 439 ; s. c. 40 La. Ann. 645, 4 So. 586. Federal courts are not bound 
by the rules of constructive notice and summons followed in the State courts. Tripp 
v. Santa Rosa St. R. Co., 144 U. S. 126, 12 Sup. Ct. Rep. 655. A State can neither 
enlarge nor restrict the jurisdiction of the Federal courts. Southern Pac. Co. v. 
Denton, 146 U. S. 202, 13 Sup. Ct. Rep. 44 ; Parker v. Ormsby, 141 U. S. 81, 11 
Sup. Ct. Rep. 912. Nor can it regulate the practice thereof. Scott v. Neely, 140 
U. S. 106, 11 Sup. Ct. Rep. 712. Nor can a State court readjudicate matters deter- 
mined by a Federal court. Leadville Coal Co. v. McCreery, 141 U. S. 475, 12 Sup. 
Ct. Rep. 28. Where an administrator appointed under the laws of one State appears, 



28 CONSTITUTIONAL LIMITATIONS. [CH. II. 

United States the final judgment or decree in any suit, rendered 
in the highest court of law or equity of a State in which a deci- 
sion could be had, in which is drawn in question the validity of 
a treaty, or statute of, or authority exercised under the United 
States, and the decision is against its validity ; (a) or where is 
drawn in question the validity of a statute of, or an authority 
exercised under any State, on the ground of its being repugnant 

without authority from the court appointing him, and defends upon the merits a suit 
brought against him in a Federal circuit court in another State, and the decree goes 
against him, and he later appears and files a bill of review in that court, the laws of 
the second State permitting administrators of other States to sue as such in its courts, 
the Federal court gets jurisdiction of the administrator and the decree in the suit for 
review is binding upon him and must be given full faith and credit in other States. 
Lawrence v. Nelson, 143 U. S. 215, 12 Sup. Ct. Rep. 440. "Judgments and decrees 
of a circuit court of the United States are to be accorded in the State courts the 
same effect as would be accorded to the judgments and decrees of a State tribunal of 
equal authority." Pendleton v. Russell, 144 U. S. 640, 12 Sup. Ct. Rep. 743. Federal 
Supreme Court will not issue mandamus to State Supreme Court to reinstate a dis- 
barred attorney. Re Green, 141 U. S. 325, 11 Sup. Ct. Rep. 11. Federal practice not 
subject to State control. Fishburn v. Chicago, M. & St. P. R. Co., 137 U. S. 60, 11 
Sup. Ct. Rep. 8. A State court will not be permitted to try a United States marshal, 
deputed to protect one of the Federal judges in the performance of his duties, for an 
alleged murder where the killing was done by the marshal in affording such protec- 
tion and was necessary thereto. Cunningham v. Neagle, 135 U. S. 1, 10 Sup. Ct. Rep. 
658. Receivers appointed by Federal court are, by act of Congress, suable in State 
courts. Gableman v. Peoria, D. & E. R. Co., 179 U. S. 335, 21 Sup. Ct. Rep. 171. Upon 
administration of federal laws in State courts, see valuable note in 48 L. R. A. 33. 
Except by permission of Congress a State cannot determine the territorial extent to 
which a judgment of a Federal court shall be a lien. Blair v. Ostrander, 109 Iowa, 
204, 80 N. W. 330, 47 L. R. A. 469, 77 Am. St. 532 ; upon liens of judgments in 
Federal courts, see note to this case in L. R. A. That a State court will set aside a 
judgment obtained by fraud in a Federal court, see Wonderly v. La Fayette Co., 150 
Mo. 635, 51 S. W. 745, 45 L. R. A. 386, 73 Am. St. 474. That Congress cannot com- 
pel State courts to entertain and act upon applications for naturalization, see State v. 
Judges of Inf. Ct. of Com. Pleas, 58 N. J. L. 97, 32 All. 743, 30 L. R. A. 761. Liens 
arising from federal decrees are not subject to State recording laws. Stewart v. 
W. & L. E. R. Co., 53 Ohio St. 151, 41 N. E. 247, 29 L. R. A. 438.3 

(a) ^When the decision is in f ivor of its validity there is no ground for review. 
Abbott v. Nat'l Bk. of Commerce, 175 U. S. 409, 20 Sup. Ct. Rep. 153. Upon when 
validity is drawn in question, see Linford v. Ellison, 155 U. S. 503, 15 Sup. Ct. Rep. 
179. Where officers of the United States are in possession of lands and claim to 
hold for the United States, and are sued as trespassers, the case may be reviewed in 
the Federal court. Stanley v. Schwalby, 147 U. S. 608, 13 Sup. Ct. Rep. 418. 

Whether a right given by act of Congress to "legal representatives" is for 
benefit of next of kin to the exclusion of creditors is a federal question. Briggs v. 
Walker, 171 U. S. 466, 19 Sup. Ct. Rep. 1. So is the effect of foreclosure proceed- 
ings in a Federal court. Pittsburg C. C. & St. L. Ry. Co. v. Long Island L. & T. Co., 
172 U. S. 493, 19 Sup. Ct. Rep. 238. Where the decision of a State court may be 
supported upon grounds which do not involve a federal question, the United States 
Supreme Court will not review the case even though a federal question was also 
raised in the State court. Chappell Chemical & F. Co. v. Sulphur Mines Co., 172 
U. S. 465, 19 Sup. Ct. Rep. 265; Allen v. Southern Pacific Ry. Co., 173 U. S. 479, 19 
Sup. Ct. Rep. 618; Harrison v. Morton, 171 U. S. 38, 18 Sup. Ct. Rep. 742. Validity 
of title alleged to be derived through a congressional land grant when questioned 
raises a federal question. Northern Pac. Ry. Co. p. Colburn, 164 U. S. 383, 17 Sup. 
Ct. Rep. 98-3 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



29 



to the Constitution, treaties, or laws of the United States, and 
the decision is in favor of its validity ; or where any title, right, 
privilege, or immunity is claimed under the Constitution or any 
treaty or statute of or commission held or authority exercised 
under the United States, and the decision is against the title, 
right, privilege, or immunity specially set up or claimed by 
either party under such Constitution, treaty, statute, commis- 
sion, or authority. 1 

But to authorize the removal under that act, it must appear by 
the record, either expressly or by clear and necessary intend- 
ment, that some one of the enumerated questions did arise in 
the State court, and was there passed upon, (a) It is not suffi- 



i Acts 1789 and 1867 ; R. S. 1878, title 
13, ch. 11. 

" It is settled law, as established by 
well-considered decisions of this court, 
pronounced upon full argument, and 
after mature deliberation, notably in 
Cohens v. Virginia, 6 Wheat. 264; Os- 
born t'. Bank of United States, 9 Wheat. 
738; Mayor v. Cooper, 6 Wall. 247; 
Gold Water & Washing Co. v. Keyes, 
96 U. S. 199; and Tennessee v. Davis, 
100 U. S. 257 : 

"That while the eleventh amendment 
of the national Constitution excludes the 
judicial power of the United States from 
suits, in law or equity, commenced or 
prosecuted against one of the United 
States by citizens of another State, such 
power is extended by the Constituti6n to 
suits commenced or prosecuted by a State 
against an individual, in which the latter 
demands nothing from the former, but 
only seeks the protection of the Consti- 
tution and laws of the United States 
against the claim or demand of the 
State ; 

" That a case in law or equity consists 
of the right of one party, as well as of 
the other, and may properly be said to 
arise under the Constitution, or a law of 
the United States, whenever its correct 
decision depends upon a construction of 
either ; 

" That cases arising under the laws of 
the United States are such as grow out of 
the legislation of Congress, whether they 
constitute the right, or privilege, or claim, 
or protection, or defence of the party, 



in whole or in part, by whom they are 
asserted ; 

" That except in the cases of which 
this court is given by the Constitution 
original jurisdiction, the judicial power 
of the United States is to be exercised in 
its original or appellate form, or both, as 
the wisdom of Congress may direct ; and 
lastly, 

" That it is not sufficient to exclude 
the judicial power of the United States 
from a particular case that it involves 
questions which do not at all depend on 
the Constitution or laws of the United 
States ; but when a question to which the 
judicial power of the Union is extended 
by the Constitution forms an ingredient 
of the original cause, it is within the 
power of Congress to give the circuit 
courts jurisdiction of that cause, although 
other questions of fact or law may be in- 
volved in it." Harlan, J., in Railroad Co. 
v. Mississippi, 102 U. S. 136, 140. QUpon 
removal of causes to the Federal court, see 
note to 36 L. ed. U. S. 346, and another at 
page 528. The Federal Supreme Court 
may review the decision of a State court 
as to what property of a bankrupt passes 
to his assignee in bankruptcy ; also as to 
when property arising under act of Con- 
gress begins. Williams v. Heard, 140 
U. S. 529, 11 Sup. Ct. Rep. 885. For 
other cases upon power of review by the 
Supreme Court of the United States, see 
Metropolitan Nat'l Bk. v. Claggett, 141 
U. S. 520, 12 Sup. Ct.Rep.60; Ktheridge 
v. Sperry, N. & G., 139 U. S. 266, 11 Sup. 
Ct Rep. 565.] 



(a) FJ" We have repeatedly decided that an appeal to the jurisdiction of the court 
must not be a mere afterthought, and that if any right, privilege, or immunity is 



30 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 



cient that it might have arisen or been applicable. 1 And if 



1 Owings v. Norwood's Lessee, 5 
Cranch, 344 ; Martin v. Hunter's Lessee, 
1 Wheat. 304; Inglee v. Coolidge, 2 
Wheat. 363; Miller t;. Nicholls, 4 Wheat. 
311; Williams v. Norris, 12 Wheat. 117; 
Hickie v. Starke, 1 Pet. 94; Harris v. 
Dennie, 3 Pet. 292 ; Fisher's Lessee v. 
Cockerell, 6 Pet. 248 ; New Orleans 
v. De Armas, 9 Pet. 223, 234 ; Keene r. 
Clarke, 10 Pt t. 291 ; Crowell v. Randell. 
10 Pet. 368 ; McKinny v. Carroll, 12 Pet. 
66; Holmes r. Jennison, 14 Pet. 540; 
Scott v. Jones, 6 How. 343 ; Smith v. 
Hunter, 7 How. 738; Williams v. Oliver, 
12 How. Ill ; Calcote v. Stanton, 18 How. 
243; Maxwell v. Newbold, 18 How. 511; 
Hoyt v. Shelden, 1 Black, 518 ; Farney 
v. Towle, 1 Black, 350 ; Day v. Gallup, 2 
Wall. 97 ; Walker v. Villavaso, 6 Wall. 
124 ; The Victory, 6 Wall. 382 ; Hamilton 
Co. v. Mass., 6 Wall. 632; Gibson v. 
Chouteau, 8 Wall. 314; Worthy v. Com- 
missioners, 9 Wall. 611 ; Messenger v. 
Mason, 10 Wall. 507 ; Insurance Co. v. 
Treasurer, 11 Wall. 204 ; McManus v. 
O'Sullivan, 91 U. S. 578 ; Boiling v. Lers- 
ner, 91 U. S. 594 ; Adams Co. v. Burling- 
ton, &c. R. R. Co., 112 U. S. 123, 5 Sup. 
Ct. Rep. 77; Chicago Life Jns. Co. v. 
Needles, 113 U. S. 574, 6 Sup Ct. Rep. 
681; Detroit Ry. Co. v. Guthard, 114 
U. S. 133, 5 Sup. Ct. Rep. 811 ; Arrow- 
smith v. Harmoning, 118 U. S. 194, 6 
Sup. Ct. Rep. 1023; Germania Ins. Co. 



v. Wisconsin, 119 L T . S. 473, 7 Sup. Ct. 
Rep. 360 ; Lehigh Water Co. v. Easton, 
121 U. S. 388, 7 Sup. Ct. Rep. 916; New 
Orleans Water Works v. Louisiana Sugar 
Co., 125 U. S. 18, 8 Sup. Ct. Rep. 741 ; 
fJScudder v. Coler, 175 U. S. 32, 20 Sup. 
Ct. Rep. 26 ; Roby v. Colehour, 146 U. S. 
153, 13 Sup. Ct. Rep. 47 ; Brown v. Massa- 
chusetts, 144 U. S. 573, 12 Sup. Ct. Rep. 
757 ; Jesler v. Bd. of Harbor Com'rs, 146 
U. S. 646, 13 Sup. Ct. Rep. 190 ; United 
States v. Lynch, 137 U. S. 280, 11 Sup. 
Ct. Rep. 114.J It is not sufficient that 
the presiding judge of the State court 
certifies that a right claimed under the 
national authority was brought in ques- 
tion. Railroad Co. v. Rock, 4 Wall. 177 ; 
Parmelee v. Lawrence, 11 Wall. 36 ; Felix 
v. Schwarnweber, 125 U. S. 54, 8 Sup. 
Ct. Rep. 759 ; QHenkel v. Cincinnati, 177 
U. S. 170, 20 Sup. Ct. Rep. 573.J If the 
record does not show a federal question 
raised or necessarily involved, the opin- 
ion of the court will not be examined to 
see if one was in fact decided. Otis v. 
Oregon S. S. Co., 116 U. S. 648, 6 Sup. 
Ct. Rep. 523. But where an opinion is 
part of the record by law, it may be 
examined. New Orleans Water Works 
v. Louisiana Sugar Co., 125 U. S. 18, 8 
Sup. Ct. Rep. 741; Kreiger v. Shelby R. R. 
Co., 125 U. S. 39, 8 Sup. Ct. Rep. 752; 
Gross v. U. S. Mortgage Co., 108 U. S. 477, 
2 Sup. Ct. Rep. 940 ; and see Phila. Fire 



asserted under the Constitution or laws of the United States, it must be specially set 
up and claimed before the final adjudication of the case in the court from which the 
appeal is sought to be maintained." Per Mr. Justice Brown in Bolln v. Nebraska, 
176 U. S. 83,20 Sup. Ct. Rep. 287; Caldwell r. Texas, 137 U. S.691, 11 Sup.Ct. Rep. 
224 ; Eastern Building & L. Ass'n v. Welling, 181 U. S. 47, 21 Sup. Ct. Rep. 531 ; 
Yazoo & M. V. Ry. Co. v. Adams, 180 U. S. 1, 21 Sup. Ct. Rep. 240 ; Turner v. Rich- 
ardson, 180 U. S. 87, 21 Sup. Ct. Rep. 295 ; Texas & P. Ry. Co. v. So. Pac. Co., 137 
U. S. 48, 11 Sup. Ct. Rep. 10; Butler v. Gage, 138 U. S. 52, 11 Sup. Ct. Rep. 235. 
And it must be set up by him who would avail himself of it in the Federal Supreme 
Court. He cannot avail himself of the fact that somebody else raised the question 
in the State court, even though it were in the same suit. Sully v. American National 
Bank, 178 U. S. 289, 20 Sup. Ct. Rep. 935; Missouri i;. Andriano, 138 U. S. 497, 11 
Sup. Ct. Rep. 385. It is sufficient, however, if it be raised in the highest State court 
and there passed upon on its merits. Sully v. American National Bank, supra. It is 
sufficient if it be raised by some one under whom he claims. Ludeling v. Chaffe, 
143 U. S. 301, 12 Sup. Ct. Rep. 439. The dispute must be real and substantial. Re 
Buchanan, 158 U. S. 31, 15 Sup. Ct. Rep. 723. And see in particular a note upon 
what is a federal question in 39 L. ed. U. S. 884. Also Powell v. Supervisors of 
Brunswick Co., 150 U. S. 433, 14 Sup. Ct. Rep. 166 ; Hamblin v. Western Land Co., 
147 U. S. 531, 13 Sup. Ct. Rep. 353. And see also upon "Necessity of Federal 
Question," note to last case in 37 Law ed. U. S. 267.] 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



31 



the decision of the State court is in favor of the right, title, 
privilege, or exemption so claimed, the Judiciary Act does not 
authorize such removal. 1 Neither does it where the validity of 
the State law is drawn in question, and the decision of the State 
court is against its validity. 2 

But the same reasons which require that the final decision 
upon all questions of national jurisdiction should be left to the 
national courts will also hold the national courts bound to 
respect the decisions of the State courts upon all questions 
arising under the State constitutions and laws, where nothing 
is involved of national authority, or of right under the Consti- 
tution, laws, or treaties of the United States ; (a) and to accept 



Ass. i>.New York, 119 U. S. 110, 7 Sup. Ct. 
Rep. 108. The record should show that 
the right was claimed in the trial court. 
Brooks v. Missouri, 124 U. S. 394, 8 Sup. 
Ct. Rep. 443. It is a federal question 
whether a State court has given effect 
to the unreversed decision of a United 
States Circuit Court acting within its 
jurisdiction. Crescent City, &c. Co. v. 
Butcher's Union, &c. Co., 120 U. S. 141, 
7 Sup. Ct. Rep. 472. So, whether a 
prisoner has been twice in jeopardy ; 
Bohanan v. Nebraska, 118 U. S. 231, 6 
Sup. Ct. Rep. 1049 ; and whether one 
in a country with which we have an ex- 
tradition treaty can be brought back for 
trial except under the treaty provisions. 
Ker v. Illinois, 119 U. S. 436, 7 Sup. Ct. 
Rep. 225. That a State court has held 
valid a divorce in a foreign country raises 
no such question. Roth v. Ehman, 107 
U. S. 319, 2 Sup. Ct. Rep. 312. [For 
other examples of cases held to involve 
no federal question, see Crystal Springs 
Land & W. Co. v. Los Angeles, 177 U. S. 
169, 20 Sup. Ct. Rep. 573; De Lamar's 
Gold Mining Co. v. Nesbitt, 177 U. S. 
523, 20 Sup. Ct. Rep. 715; McCain v. Des 



Moines, 174 U. S. 168, 19 Sup. Ct. Rep. 
644 ; Remington Paper Co. v. Watson, 
173 U. S. 443, 19 Sup. Ct. Rep. 456; 
Capital Nat'l Bk. v. First Nat'l Bk., 172 
U. S. 426, 19 Sup. Ct. Rep. 202.] 

1 Gordon v. Caldcleugh, 3 Cranch, 268 ; 
McDonogh v. Millaudon, 3 How. 693 ; 
Fulton v. McAffee, 16 Pet. 149 ; Linton v. 
Stanton, 12 How. 423 ; Burke v. Gaines, 
19 How. 388; Reddall v. Bryan, 24 How. 
420; Roosevelt v. Meyer, 1 Wall. 512; 
Ryan v. Thomas, 4 Wall. 603; p3ower 
r. Richards, 151 U. S. 658, 14 Sup. Ct. Rep. 
452.] 

2 Commonwealth Bank v. Griffith, 14 
Pet. 56; Walker v. Taylor, 5 How. 64; 
QMcNulty v. California, 149 U. S. 645, 13 
Sup. Ct. Rep. 959.] We take no notice 
here of the statutes for the removal of 
causes from the State to the Federal 
courts for the purposes of original trial, 
as they are not important to any discus- 
sion we shall have occasion to enter upon 
in this work. See Rev. Stat. of U: S. 
1878, title 13, ch. 7 ; Cooley, Constitutional 
Principles, 122-128. Judge Dillon has 
published a convenient manual on this 
subject. 



(a) QBut this does not apply to cases involving the question of impairment of obli- 
gation of contracts : McCullough v. Virginia, 172 U. S. 102, 19 Sup. Ct. Rep. 134, and 
many cases there cited : Shelby Co. v. Union & Planter's Bk., 161 U. S. 149, 16 Sup. 
Ct. Rep. 558; Folsom v. Township Ninety-six, 159 U. S. 611, 16 Sup. Ct. Rep. 174; 
Mobile & O. Ry. Co. v. Tennessee, 153 U. S. 486, 14 Sup. Ct. Rep. 968 ; Barnum v. 
Okolona, 148 U. S. 393, 13 Sup. Ct. Rep. 638 ; Knox Co. v. Ninth National Bank, 147 
U. S. 91, 13 Sup. Ct. Rep. 267 ; McGahey v. Virginia, 135 U. S. 662, 10 Sup. Ct. Rep. 
972. 

It does not apply to cases involving the validity of alleged contracts. Turner 
v. Com'rs of Wilkes Co., 173 U. S.461, 19 Sup. Ct. Rep. 464. And see also the dis- 
senting opinion of Peckham, J., in McCullough v. Virginia, above. Also Bacon v. 



32 CONSTITUTIONAL LIMITATIONS. [CH. II. 

the State decisions as correct, (a) and to follow them whenever 

Texas, 163 U. S. 207, 16 Sup. Ct. Rep. 1023. Upon revision by Federal courts of 
the construction by State courts of State laws, see notes to 7 L. ed. U. S. 679, and 
12 L. ed. U. S. 169. 

In the interpretation of negotiable contracts the Supreme Court of the United 
States will follow the general principles of commercial law, and will not follow the 
particular construction of any State court. This is true, though such contracts be 
issued by municipalities of the State. Woodruff v. Mississippi, 162 U. S. 291, 16 
Sup. Ct. Rep. 820. So with regard to the master's liability to servants for damage 
caused by negligence of fellow-servant. Baltimore & Ohio Ry. Co. v. Baugh, 149 
U. S. 368, 13 Sup. Ct. Rep. 914; Gardner v. Michigan C. Ry. Co., 150 U. S. 349, 14 
Sup. Ct. Rep. 140. And so as to all questions of general law. Clark v. Bever, 139 
U. S. 96, 11 Sup. Ct. Rep. 468; Pleasant Tp. v. -<Etua Life Ins. Co., 138 U. S. 67, 11 
Sup. Ct. Rep. 215-3 

(a) QThe construction put upon its statutes by the courts of a State is usually bind- 
ing upon the Federal courts. New York Life Ins Co. v. Cravens, 178 U. S. 389, 20 
Sup. Ct. Rep. 962 ; Clarke v. Clarke, 178 U. S. 186, 20 Sup. Ct. Rep. 873; Warburton 
v. White, 176 U. S. 484, 20 Sup. Ct. Rep. 404 ; Hartford F. Ins. Co. v. Chicago M. & 
St. P. Ry. Co., 175 U. S. 91, 20 Sup. Ct. Rep. 33; Sioux City Tr. & W. Co. v. Trust 
Co. of N. A., 173 U. S. 99, 19 Sup. Ct. Rep. 381 ; First Nat'l Bank i;. Chehalis Co., 
166 U. S. 440, 17 Sup. Ct. Rep. 629; Walker v. New Mexico & S. P. Ry. Co., 165 U. 
S. 593, 17 Sup. Ct. Rep. 421 ; Bamberger & Co. v. Schoolfield, 160 U. S. 149, 16 Sup. 
Ct. Rep. 225 ; First Nat'l Bk. v. Ayers, 160 U. S. 660, 16 Sup. Ct. Rep. 412 ; Bergeman 
v. Backer, 157 U. S. 655, 15 Sup. Ct. Rep. 727 ; Baltimore Tr. Co. v. Baltimore B. R. 
Co., 151 U. S. 137, 14 Sup. Ct. Rep. 294; Ex parte Lockwood, 164 U. S. 116, 14 Sup. 
Ct. Rep. 1082; Morley v. L. S. & M. S. Ry. Co., 146 U. S. 162, 13 Sup. Ct. Rep. 54; 
Hancock v. Louisville & N. Ry. Co., 145 U. S. 409, 12 Sup. Ct. Rep. 969; Kaukauna 
W. P. Co. P. Green Bay & M. Canal Co., 142 U. S. 254, 12 Sup. Ct. Rep. 173 ; Duncan 
v. McCall, 139 U. S. 449, 11 Sup. Ct. Rep. 573; Pullman Pal. Car Co. U.Pennsylvania, 
141 U. S. 18, 11 Sup. Ct. Rep. 876 ; Cross v. Allen, 141 U. S. 528, 12 Sup. Ct. Rep. 67 ; 
Randolph's Executor v. Quidnick Co., 135 U. S. 457 ; 10 Sup. Ct. Rep. 655; Abraham 
v. Casey, 179 U. S. 210, 21 Sup Ct. Rep. 88; Mason v. Missouri, 179 U. S. 328, 21 
Sup. Ct. Rep. 125; Loeb v. Columbia Tp. Trustees, 179 U. S. 472, 21 Sup. Ct. Rep. 
174. 

Rules of real property settled by course of State decisions are followed by Fed- 
eral courts. Lowndes v. Town of Huntington, 153 U. S. 1, 14 Sup. Ct. Rep. 758; 
Halstead v. Buster, 140 U. S. 273, 11 Sup. Ct. Rep. 782. 

And so as to chattel mortgages. Etheridge v. Sperry W. & G., 139 U. S. 266, 11 
Sup. Ct. Rep. 665. And assignments for benefit of creditors. South Branch L. Co. 
v. Ott, 142 U. S. 622, 12 Sup. Ct. Rep. 318. 

State decisions upon what is correct practice in criminal cases are followed unless 
due process is denied. Graham v. Weeks, 138 U. S. 461, 11 Sup. Ct. Rep. 363. 
The latest settled adjudications are usually followed. Wade v. Travis Co., 174 
U. S. 499, 19 Sup. Ct. Rep. 715 ; Backus . Fort St. Union Depot Co., 169 U. S. 557, 18 
Sup. Ct. Rep. 445; Nobles . Georgia, 168 U. S. 398, 18 Sup. Ct. Rep. 87; Barber i>. 
Pittsburg Ft. W. & C. Ry. Co., 166 U. S. 83, 17 Sup. Ct. Rep. 488; Bauserman v. 
Blunt, 147 U. S. 647, 13 Sup. Ct. Rep. 466 ; Byers v. McAuley, 149 U. S. 608, 13 
Sup. Ct. Rep. 406; Miller's Exrs. v. Swann, 150 U. S. 132, 14 Sup. Ct. Rep. 52; New 
York L. E. & W. Ry. Co. v. Estill, 147 U. S. 591, 13 Sup. Ct. Rep. 444; Wood . 
Brady, 160 U. S. 18, 14 Sup. Ct. Rep. 6; May v. Tenney, 148 U. S. 60, 13 Sup. Ct. 
Rep. 491 ; Stutsman Co. v. Wallace, 142 U. S. 293, 12 Sup. Ct. Rep. 227 ; Yazoo & 
M. V. Ry. Co. v. Adams, 181 U. S. 680, 21 Sup. Ct. Rep. 729. 

So the construction put upon statutes by the courts of the State will usually be 
followed by the courts of other States. Kulp v. Fleming, 66 Ohio, 321, 62 N. E. 334, 
87 Am. St. 611. See upon "rule of decision " in Federal courts, article in 60 Alb. L. 
Jour. 297.] 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



33 



the same questions arise in the national courts. 1 With the 
power to revise the decisions of the State courts in the cases 



1 In Beauregard v. New Orleans, 18 
How. 497, 502, Mr. Justice Campbell says : 
"The constitution of this court requires 
it to follow the laws of the several States 
as rules of decision wherever they apply. 
And the habit of the court has been to 
defer to the decisions of their judicial tri- 
bunals upon questions arising out of the 
common law of the State, especially when 
applied to the title of lands." In Bank 
of Hamilton v. Dudley's Lessee, 2 Pet. 492, 
524, it was urged that the exclusive power 
of State courts to construe legislative acts 
did not extend to the paramount law, so 
as to enable them to give efficacy to an 
act which was contrary to the State con- 
stitution ; but Marshall, Ch. J., said : " We 
cannot admit this distinction. The judi- 
cial department of every government is 
the rightful expositor of its laws, and 
emphatically of its supreme law." Again, 
in Elmendorf v. Tailor, 10 Wheat. 152, 
159, the same eminent judge says : " The 
judicial department of every government, 
where such department exists, is the ap- 
propriate organ for construing the legis- 
lative acts of that government. Tims no 
court in the universe which proposed to 
be governed by principle would, we pre- 
sume, undertake to say that the courts of 
Great Britain or France, or of any other 
nation, had misunderstood their own stat- 
utes, and therefore erect itself into a 
tribunal which should correct such misun- 
derstanding. We receive the construction 
given by the courts of the nation as the 
true sense of the law, and feel ourselves 
no more at liberty to depart from that 
construction than to depart from the 
words of the statute. On this princi- 
ple, the construction given by this court 
to the Constitution and laws of the United 
States is received by all as the true con- 
struction ; and on the same principle the 
construction given by the courts of the 
several States to the legislative acts of 
those States is received as true, unless 
they come in conflict with the Consti- 
tution, laws, or treaties of the United 
States." In Green v. Neal's Lessee, 6 Pet. 
291, 298, it is said by McLean, J. : " The 
decision of the highest judicial tribunal 
of a State should be considered as final 
by this court, not because the State tri- 



bunal in such a case has any power to 
bind this court, but because, in the lan- 
guage of the court in Shelby v. Guy, 
11 Wheat. 361, a fixed and received con- 
struction by a State in its own courts 
makes a part of the statute law." And 
see Jackson v. Chew, 12 Wheat. 153, 
162, per Thompson, J. ; also the follow- 
ing cases : Sims v. Irvine, 3 Dall. 425 ; 
McKeen v. Delancy, 5 Cranch, 22 ; Folk's 
Lessee v. Wendal, 9 Cranch, 87; Preston 
v. Browder, 1 Wheat. 115; Mutual As- 
surance Co. v. Watts, 1 Wheat. 279; 
Shipp v. Miller, 2 Wheat. 316 ; Thatcher 
v. Powell, 6 Wheat. 119; Bell v. Morri- 
son, 1 Pet. 351 ; Waring v. Jackson, 1 
Pet. 570 ; De Wolf v. Rabaud, 1 Pet. 476 ; 
Fullerton v. Bank of United States, 1 Pet. 
604; Gardner v. Collins, 2 Pet. 58 ; Beach 
v. Viles, 2 Pet. 675 ; Inglis v. Sailor's Snug 
Harbor, 3 Pet. 99 ; United States v. Mor- 
rison, 4 Pet. 124; Henderson v. Griffin, 
6 Pet. 151 ; Hinde v. Vattier, 5 Pet. 398; 
Ross w. McLung, 6 Pet. 283 ; Marlatt v. 
Silk> 11 Pet. 1 ; Bank of United States v. 
Daniel, 12 Pet. 32 ; Clarke v. Smith, 13 
Pet. 195; Ross v. Duval, 13 Pet. 45; Wil- 
cox v. Jackson, 13 Pet. 498; Harpending 
v. Reformed Church, 16 Pet. 455 ; Martin 
v. Waddell, 16 Pet. 307 ; Amis v. Smith, 
16 Pet. 303 ; Porterfield v. Clark, 2 How. 
76 ; Lane v. Vick, 3 How. 464 ; Foxcroft 
v. Mallett, 4 How. 353 ; Barry v. Mercein, 
5 How. 103; Rowan v. Runnells, 5 How. 
134; Van Rensselaer v. Kearney, 11 How. 
297 ; Pease v. Peck, 18 How. 595 ; Fisher 
v. Haldeman, 20 How. 186; Parker v. 
Kane, 22 How. 1 ; Suydam v. Williamson, 
24 How. 427 ; Sumner v. Hicks, 2 Black, 
532 ; Chicago v. Robbins, 2 Black, 418 ; 
Miles v. Caldwell, 2 Wall. 35; Williams 
v. Kirkland, 13 Wall. 306; Walker v. 
Harbor Com'rs, 17 Wall. 648; Supervi- 
sors v. United States, 18 Wall. 71; Fair- 
field v. Gallatin, 100 U. S. 47 ; Wade v. 
Walnut, 105 U. S. 1 ; Post v. Supervi- 
sors, id. 667; Taylor v. Ypsilanti, id. 60; 
Equator Co. v. Hall, 106 U. S. 86, 1 Sup. 
Ct. Rep. 198 ; Bendey v. Townsend, 109 
U. S. 665, 3 Sup. Ct. Rep. 482 ; Norton v. 
Shelby Co., 118 U. S. 425, 6 Sup. Ct. Rep. 
1121 ; Stryker v. Goodnow, 123 U. S. 527, 
8 Sup. Ct. Rep. 203 ; Williams w. Conger, 
125 U. S. 397, 8 Sup. Ct. Rep. 933 ; Bucher 



34 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 



already pointed out, the due observance of this rule will prevent 
those collisions of judicial authority which would otherwise be 



v. Cheshire R. R. Co., id. 555, 8 Sup. Ct. 
Rep. 974; German Sav. Bank v. Franklin 
Co., 128 U. S. 526, 9 Sup. Ct. Rep. 159; 
Springer v. Foster, 2 Story C. C. 383; 
Neal v. Green, 1 McLean, 18; Paine v. 
Wright, 6 McLean. 395 ; Boyle v. Arledge, 
Hemp. 620; Griffing v. Gibb, McAll. 212; 
Bayerque v. Cohen, Me All. 113; Wick v. 
The Samuel Strong, Newb. 187; N. F. 
Screw Co. v. Bliven, 3 Blatch. 240 ; Bron- 
son v. Wallace, 4 Blatch. 465 ; Van Boke- 
len v. Brooklyn City R. R. Co., 5 Blatch. 
379; United States v. Mann, 1 Gall. 3; 
Society, &c. v. Wheeler, 2 Gall. 105; 
Coates v. Muse, Brock. 529; Meade v. 
Beale, Taney, 339; Loring v. Marsh, 2 
Cliff. 311; Parker v. Phetteplace, 2 Cliff. 
70; King v. Wilson, 1 Dill. 555; fJNew 
York Life Ins. Co. v. Cravens, 178 U. S. 
389, 20 Sup. Ct. Rep. 962. See also note 
to 12 L. ed. U. S. 169, and to 5 L. R. A. 
508. Upon when Federal courts do not 
follow State decisions, see note to 19 
L. ed. U. S. 490. See also Missouri, 
K. & T. Ry. Co. v. McCann, 174 U. S. 
580, 19 Sup. Ct. Rep. 755.] The deci- 
sion of the State court, that a State 
statute has been enacted in accordance 
with the State constitution, is binding 
on the Federal courts. Railroad Co. v. 
Georgia, 98 U. S. 359; [[Brown v. New 
Jersey, 175 U. S. 172, 20 Sup. Ct. Rep. 
77 ; Tullis v. Lake Erie & W. Ry. Co., 175 
U. S. 348, 20 Sup. Ct. Rep. 136; Missouri, 
K. & T. Ry. Co. v. McCann, 174 U. S. 
680, 586, 19 Sup. Ct. Rep. 755 ; M. & M. 
Nat'l Bk. v. Pennsylvania, 167 U. S. 461, 
17 Sup. Ct. Rep. 829.] In Green o. Neal's 
Lessee, 6 Pet. 291, an important question 
was presented as to the proper course to 
be pursued by the Supreme Court of the 
United States, under somewhat embar- 
rassing circumstances. That court had 
been called upon to put a construction 
upon a State statute of limitations, and 
had done so. Afterwards the same ques- 
tion had been before the Supreme Court 
of the State, and in repeated cases had 
been decided otherwise. The question 
now was whether the Supreme Court 
would follow its own decision, or reverse 
that, in order to put itself in harmony 
with the State decisions. The subject is 
considered at length by McLean, J., who 



justly concludes that " adherence by the 
Federal to the exposition of the local law, 
as given by the courts of the State, will 
greatly tend to preserve harmony in the 
exercise of the judicial power in the 
State and Federal tribunals. This rule is 
not only recommended by strong con- 
siderations of propriety, growing out of 
our system of jurisprudence, but it is 
sustained by principle and authority." 
The court, accordingly, reversed its rul- 
ings to make them conform to those of 
the State court. See also Suydam v. 
Williamson, 24 How. 427 ; Leffingwell v. 
Warren, 2 Black, 599; Blossburg, &c. 
R. R. Co. v. Tioga R. R. Co., 5 Blatch. 
387 ; Smith v. Shriver, 3 Wall. Jr. 219. 
It is, of course, immaterial that the court 
may still be of opinion that the State 
court has erred, or that the decisions 
elsewhere are different. Bell v. Morrison, 
1 Pet. 351. But where the Supreme 
Court had held that certain contracts for 
the price of slaves were not made void by 
the State constitution, and afterwards the 
State court held otherwise, the Supreme 
Court, regarding this decision wrong, de- 
clined to reverse their own ruling. Rowan 
v. Runnels, 5 How. 134. Compare this 
with Nesmith v. Sheldon, 7 How. 812, in 
which the court followed, without exam- 
ination or question, the State decision 
that a State general banking law was in 
violation of the constitution of the State. 
The United States Circuit Court had held 
otherwise previous to the State decision. 
Falconer v. Campbell, 2 McLean, 195. 
Under like circumstances the State Su- 
preme Court's ruling on a statute of 
limitations was followed, overruling the 
Federal circuit decision which followed 
that of a lower State court. Moores v. 
Nat. Bank, 104 U. S. 625. But the State 
court's construction of its constitution 
after the controversy arose, and in a suit 
between different parties as to the same 
subject-matter, is not binding on the Fed- 
eral court. Carroll Co. v. Smith, 111 
U. S. 656, 4 Sup. Ct. Rep. 539 ; Enfield 
v Jordan, 119 U. S. 680, 7 Sup. Ct. Rep. 
358. So, where after a ruling in the 
United States Circuit Court the State 
Supreme Court for the first time decides 
against such ruling, its decision will not 



en. IL] 



THE CONSTITUTION OF THE UNITED STATES. 



35 



inevitable, and which, besides being unseemly, would be dan- 
gerous to the peace, harmony, and stability of the Union. 

Besides conferring specified powers upon the national govern- 
ment, the Constitution contains also certain restrictions upon 
the action of the States, a portion of them designed to prevent 
encroachments upon the national authority, (#) and another 
portion to protect individual rights against possible abuse of 
State power. Of the first class are the following: No State 
shall enter into any treaty, alliance, or confederation, grant 
letters of marque or reprisal, coin money, emit bills of credit, 1 



be followed of necessity in the Federal 
Supreme Court. Burgess v. Seligman, 
107 U. S. 20, 2 Sup. Ct. Rep. 10. See 
Gibson v. Lyon, 115 U. S. 439, 6 Sup. Ct. 
Rep. 129. 

This doctrine does not apply to ques- 
tions not at all dependent upon local 
statutes or usages ; as, for instance, to 
contracts and other instruments of a con- 
mercial and general nature, like bills of 
exchange: Swift p. Tyson, 16 Pet. 1; 
Gates v. National Bank, 100 U. S. 239 ; 
Railroad Co. v. National Bank, 102 U. S. 
14 ; and insurance contracts. Robinson 
v. Commonwealth Ins. Co., 3 Sum. 220. 
And see Reimsdyke v. Kane, 1 Gall. 
376; Austen v. Miller, 5 McLean, 153; 
Gloucester Ins. Co. v. Younger, 2 Curt. 
C. C. 322 ; Bragg v. Meyer, McAll. 408. 
Whether a lunatic's contract is void or 
voidable is a question of general juris- 
prudence. Edwards v. Davenport, 20 
Fed. Rep. 756. And of course cases pre- 
senting questions of conflict with the Con- 
stitution of the United States cannot be 
within the doctrine. State Bank v. 
Knoop, 16 How. 369; Jefferson Branch 
Bank v. Skelley, 1 Black, 436. The Fed- 
eral court must decide for itself whether 
there exists a contract within the consti- 
tutional protection. Louisville & N. R. 
R. Co. v. Palmes, 109 U. S. 244, 3 Sup. 
Ct. Rep. 193; Louisville Gas Co. v. Citi- 
zens' Gas Co., 115 U. S. 683, 6 Sup. Ct. 
Rep. 265. So in determining the validity 
of municipal ordinances. Yick Wo v. 
Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 
1064. And where a contract had been 
made under a settled construction of the 



State constitution by its highest court, 
the Supreme Court sustained it, not- 
withstanding the State court had since 
overruled its former decision. Gelpcke 
v. Dubuque, 1 Wall. 175. See Olcott v. 
Supervisors, 16 Wall. 67 ; Douglass v. 
Pike County, 101 U. S. 677. 

1 To constitute a bill of credit within 
the meaning of the Constitution, it must 
be issued by a State, involve the faith of 
the State, and be designed to circulate 
as money on the credit of the State, in 
the ordinary uses of business. Briscoe v. 
Bank of Kentucky, 1 1 Pet. 257 ; Wood- 
ruff v. Trapnall, 10 How. 190. Treasury 
warrants designed so to circulate are bills 
of credit. Braggs v. Tuff ts, 49 Ark. 554, 
6 S. W. 158. [But if they are to be re- 
tired, as soon as presented for payment 
at the State treasury, and paid, they are 
not bills of credit, even though the credi- 
tor to whom they are issued may demand 
at the time of receiving them that they 
be issued in denominations of one dollar 
each to the extent of the debt, the re- 
mainder being issued in denominations of 
not less than five dollars, and even though 
they may pass from hand to hand and are 
receivable from any person in payment 
of taxes. Houston & T. C. R. Co. v. 
Texas, 177 U. S. 66, 20 Sup. Ct. Rep. 545, 
rev. 41 S. W. 157.] The facts that a 
State owns the entire capital stock of a 
bank, elects the directors, makes its bills 
receivable for the public dues, and pledges 
its faith for their redemption, do not 
make the bills of such bank " bills of 
credit" in the constitutional sense. Dar- 
rington v. State Bank of Alabama, 13 



(a) [^Regulations of the U. S. Treasury Department which prohibit an internal 
revenue collector from producing records of his office or copies thereof in any State 
court are valid, and no State court has any authority to punish him for refusing to 
produce such records or copies before it. Boske v. Comingore, 177 U. S. 459, 20 
Sup. Ct. Rep. 701-3 



36 CONSTITUTIONAL LIMITATIONS. [CH. II. 

or make anything but gold and silver coin a tender in payment 
of debts. No State shall, without the consent of Congress, lay 
any imposts or duties upon imports or exports, except what may 
be absolutely necessary for executing its inspection laws; and 
the net produce of all duties and imposts laid by any State on 
imports or exports shall be for the use of the treasury of the 
United States, and all such laws shall be subject to the revision 
and control of Congress. No State shall, without the consent 
of Congress, lay any duty of tonnage, keep troops or ships of 
war in time of peace, enter into any agreement or compact (a) 
with another State or with a foreign power, or engage in war, 
unless actually invaded, or in such imminent danger as will not 
admit of delay. Of the second class are the following: No State 
shall pass any bill of attainder, ex post facto law, or law impair- 
ing the obligation of contracts, 1 ^) or make or enforce any law 
which shall abridge the privileges or immunities of citizens of 
the United States; nor shall any State deprive any person of 
life, liberty, or property without due process of law, nor deny 
to any person within its jurisdiction the equal protection of the 
laws, 2 nor base discriminations in suffrage on race, color, or 
previous condition of servitude. 3 

Other provisions have for their object to prevent discrimi- 
nations by the several States against the citizens and pub- 
lic authority and proceedings of other States. Of this class 
are the provisions that the citizens of each State shall be en- 
How. 12. See, further, Craig v. Missouri, l Const, of U. S. art. 1, 10; Story on 
4 Pet. 410 ; Byrne v. Missouri, 8 Pet. 40; Const, c. 33, 34. 

Curran v. Arkansas, 15 How. 304; Moreau 2 Const, of U. S. 14th Amendment; 
v. Detchamendy, 41 Mo. 431; Bailey v. Story on Const. (4th ed.) c. 47. 
Milner, 35 Ga. 330 ; City National Bank 3 Const, of U. S. 15th Amendment ; 
v. Mahan, 21 La. Ann. 751. Story on Const. (4th ed.) c. 48. 

(a) [[Agreement between two States to appoint commissioners to trace and mark 
their common boundary line is not prohibited. Virginia v. Tennessee, 148 U. S. 603, 
13 Sup. Ct. Rep. 728. Upon judicial settlement of State boundaries, see Nebraska v. 
Iowa, 145 U. S. 519, 12 Sup. Ct. Rep. 976, and note to 36 L. ed. U. S. 798.] 

(b) [[Whether a State statute impairs the obligation of a contract is a federal 
question. Pierce v. Somerset Ry., 171 U. S. 641, 19 Sup. Ct. Rep. 64. But this provi- 
sion of the Constitution does not extend to the case where a State court overrules its 
prior decisions, even though they have become rules of property and contracts have 
been entered into whose obligation is seriously impaired by such overruling. Bacon 
v. Texas, 163 U. S. 207, 16 Sup. Ct. Rep. 1023; and see also Turner v. Com'rs of 
Wilkes Co., 173 U. S. 461, 19 Sup. Ct. Rep. 464, and dissenting opinion of Peckham, 
J., in McCullough v. Virginia, 172 U. S. 102, 19 Sup. Ct. Rep. 134. That impairing 
remedy impairs the obligation of a contract, see note to 26 L. ed. U. S. 132. This 
provision does not cover the case of an alleged impairment of a contract by State 
action other than legislative. Hanford v. Davies, 163 U. S. 273, 16 Sup. Ct. Rep. 
1051 ; Turner v. Com'rs of Wilkes Co., 173 U. S. 461, 19 Sup. Ct. Rep. 464; Cen- 
tral Land Co. v. Laidley, 159 U. S. 103, 16 Sup. Ct. Rep. 80; Wood v. Brady, 150 
U. S. 18, 14 Sup. Ct. Rep. 6. See also Ford v. Delta & Pine Land Co., 164 U. S. 662, 
17 Sup. Ct. Rep. 230/] 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



37 



titled to all the privileges and immunities of citizens in the 
several States; 1 that fugitives from justice shall be delivered 



1 Const, of U. S. art. 4. " What are 
the privileges and immunities of citizens 
in the several States ? We feel no hesi- 
tation in confining these expressions to 
those privileges and immunities which 
are in their nature fundamental ; which 
belong of right to the citizens of all free 
governments, and which have at all times 
been enjoyed by the citizens of the sev- 
eral States which compose this Union, 
from the time of their becoming free., in- 

'dependent, and sovereign. What those 
- fundamental principles are, it would per- 
haps be more tedious than difficult to 

'enumerate. They may, however, be all 
comprehended under the following gen- 
eral heads : Protection by the government, 
the enjoyment of life and liberty, with 
the right to acquire and possess property 
of every kind, and to pursue and obtain 
happiness and safety, subject nevertheless 
to such restraints as the government may 
justly prescribe for the general good of 
the whole. The right of a citizen of one 
State to pass through or to reside in any 
other State, for purposes of trade, agri- 
culture, professional pursuits, or other- 
wise; to claim the benefit of the writ of 
habeas corpus; to institute and maintain 
actions of every kind in the courts of the 
State ; to take, hold, and dispose of prop- 
erty, either real or personal ; and an ex- 
emption from higher taxes or impositions 
than are paid by the citizens of the other 
State, may be mentioned as some of 
the particular privileges and immunities 

'of citizens, which are clearly embraced 
by the general description of privileges 
deemed to be fundamental ; to which may 
be added the elective franchise as regu- 
lated and established by the laws or con- 
stitution of the State in which it is to 
be exercised. These, and many others 
which might be mentioned, are, strictly 
speaking, privileges and immunities ; and 
the enjoyment of them by the citizens of 
each State in every other State was 
manifestly calculated (to use the expres- 
sions of the preamble of the corresponding 
provision in the old Articles of Confed- 
eration) 'the better to secure and per- 
petuate mutual friendship and intercourse 
among the people of the different States of 
the Union.' " Washington, J., in Corfield v. 
Coryell, 4 Wash. C. C. 380. The Supreme 



Court will not describe and define those 
privileges and immunities in a general 
classification ; preferring to decide each 
case as it may come up. Conner v. Elliott, 
18 How. 591 ; Ward r. Maryland, 12 Wall. 
418 ; McCready v. Virginia, 94 U. S. 391. 
The question in this last case was whether 
the State of Virginia could prohibit citi- 
zens of other States from planting oysters 
in Ware Hiver, a stream in that State 
where the tide ebbs and flows, and the 
right be granted by the State to its own 
citizens exclusively. \Vaite, Ch. J., in 
answering the question in the affirmative, 
said : " The right thus granted is not a 
privilege or immunity of general, but of 
special citizenship. It does not belong 
of right to the citizens of all free govern- 
ments, but only to the citizens of Virginia, 
on account of the peculiar circumstances 
in which they are placed ; they, and they 
alone, owned the property to be sold or 
used ; and they alone had the power to 
dispose of it as they saw fit. They owned 
it, not by virtue of citizenship merely, 
but of citizenship and domicile united ; 
that is to say, by virtue of a citizenship 
confined to that particular locality." See 
also Paul v. Hazelton, 37 N. J. 100; 
[Com. v. Hilton, 174 Mass. 29, 54 N. E. 
3b'2, 45 L. R. A. 475.] For other discus- 
sions upon this subject, see Murray v. 
McCarty, 2 Munf. 393 ; Lemmon v. Peo- 
ple, 26 Barb. 270, and 20 N. Y. 562; 
Campbell v. Morris, 3 Har. & M'H. 554 ; 
Amy v. Smith, 1 Lit. 326; Crandall v. 
State, 10 Conn. 340; Butler v. Farns- 
worth, 4 Wash. C. C. 101 ; Common- 
wealth v. Towles, 5 Leigh, 743 ; Haney 
v. Marshall, 9 Md. 194 ; Slaughter v. Com- 
monwealth, 13 Gratt. 767 ; State v. Med- 
bury, 3 R. I. 138; People v. Imlay, 20 
Barb. 68; People v. Coleman, 4 Cal. 46; 
People v. Thurber, 13 111. 544; Phoenix 
Insurance Co. v. Commonwealth, 5 Bush, 
68 ; Ducat v. Chicago, 48 111. 172 ; Fire 
Department v. Noble, 3 E. D. Smith, 
441; Same v. Wright, 3 E. D. Smith, 
453 ; Robinson v. Oceanic S. N. Co., 112 
N. Y. 315, 19 N. E. 625 ; Bliss's Petition, 
63 N. H. 135 ; State v. Lancaster, id. 267 ; 
People f. Phippin, 70 Mich. 6, 37 N. W. 
Rep. 88; State v. Oilman, 33 W. Va. 146, 
10 S. E. Rep. 283; Fire Dep't v. Hel- 
fenstein, 16 Wis. 136 ; Sears v. Commis- 



38 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 



up, 1 and that full faith and credit shall be given in each State 



sioners of Warren Co., 36 Ind. 267; 
Jeffersonville, &c. R. R. Co. v. Hendricks, 
41 Ind. 48; Cincinnati Health Associa- 
tion v. Rosenthal, 55 111. 85 ; State v. Fos- 
dick, 21 La. Ann. 434 ; Slaughter House 
Cases, 16 Wall. 36; Brad well v. State, 16 
Wall. 130; Bartmeyer v. Iowa, 18 Wall. 
129; United States v. Cruikshank, 92 
U. S. 542 ; Kimmish v. Ball, 129 U. S. 
217, 9 Sup. Ct. Rep. 277; [Maxwell v. 
Dow, 176 U. S. 581, 558-593, 20 Sup. Ct. 
Rep. 448, 494. Upon privileges of citi- 
zens of States, see note to 1 L. R. A. 56 ; 
political rights of, note to 8 L. R. A. 337. 
This clause does not give a citizen the 
right to enjoy within his own State the 
privileges which citizens of other States 
enjoy under the laws of those States. 
McKane v. Durston, 153 U. S. 084, 14 
Sup. Ct. Rep. 913. Nor to carry with 
him, when he goes into other States, the 
privileges which he enjoys in his home 
State. Detroit v. Osborne, 135 U. S. 492, 
30 Sup. Ct. Rep. 1012. Exemptions from 
taxation must be granted to non-residents 
upon same terms as to residents. Sprague 
v. Fletcher, 69 Vt. 69, 37 Atl. 239, 37 
L. R. A. 840. Citizen of sister State 
may sue defendant resident of his home 
State in any State where he can get ser- 
vice upon him, even though cause of 
action arose in home State, provided it 
be transitory. Eingartner v. Illinois Steel 
Company, 94 Wis. 70, 68 N. W. 664, 34 
L. R. A. 503; Cofrode v. Gartner, 79 
Mich. 332, 44 N. W. 623, 7 L. R. A. 511. 
Insurance laws cannot place greater re- 
strictions upon citizens of other States 
than upon those of home State. State 
v. Board of Ins. Com'rs, 37 Fla. 564, 20 
So. 772, 33 L. R. A. 288. Agents of non- 
resident insurers may be required to se- 
cure a certificate of authority from the 
insurance commissioner before insuring 
property within the State. People v. 
Gay, 107 Mich. 422, 65 N. W. 292, 30 
L. R. A. 464. Citizens of other States 
cannot be denied right to become trustees 
by appointment through deeds, mort- 
gages, &c. Roby v. Smith, 131 Ind. 342, 
30 N. E. 1093, 15 L. R. A. 792. Dower 
interests may be restricted to widows of 
residents. Buffington v. Grosvenor, 46 
Kan. 730, 27 Pac. 137, 13 L. R. A. 282 ; 
Bennett v. Harms, 61 Wis. 251, 8 N. W. 
222. Privilege of selling liquors may be 



restricted to male inhabitants of State. 
Welsh v. State, 126 Ind. 71, 25 N. E. 883, 
9 L. R. A. 664. Discrimination in inher- 
itance tax law between nephews and 
nieces resident within the State and those 
resident without is void. Re Mahouey's 
Estate, 133 Cal. 180, 65 Pac. 389.] The 
constitutional provision does not apply 
to corporations. Warren Manuf. Co. v. 
JEtna. Ins. Co., 2 Paine, 501; Paul v. 
Virginia, 8 Wall. 168; Pembina Mining 
Co. v. Pennsylvania, 125 U. S. 181, 8 Sup. 
Ct. Rep. 737; Woodward v. Com., 7 S. 
W. Rep. 613 (Ky.); Phenix Ins. Co. v. 
Burdett, 112 Ind. 204, 13 N. E. 705; 
[Blake v. McClung, 176 U. S. 59, 20 Sup. 
Ct. Rep. 307 ; s.'c. 172 U. S. 239, 19 Sup. 
Ct. Rep. 165; Orient Ins. Co. v. Daggs, 
172 U. S. 557, 19 Sup. Ct. Rep. 281.] 
A discrimination between local freight on 
railroads and that which is extra-territo- 
rial is not personal, and therefore not for- 
bidden by this clause of the Constitution. 
Shipper v. Pennsylvania R. R. Co., 47 
Penn. St. 338. This clause does not for- 
bid requiring security for costs from non- 
resident plaintiffs. Cummings v. Wingo, 
30 S. C. 611, 10 S. E. Rep. 107. See, for 
taxes which are forbidden by it, post, 688, 
note. [A State cannot give priority to 
creditors residing within its boundaries 
over those of the same class residing 
without. Blake v. McClung, 176 U. S. 
59, 20 Sup. Ct. Rep. 307 ; s. c. 172 U. S. 
239, 19 Sup. Ct. Rep. 165; Sully v. Amer- 
ican Nat'l Bk., 178 U. S. 289, 20 Sup. Ct. 
Rep. 935. A conveyance, which the 
courts of the State wherein it was made, 
hold void as against the citizens of that 
State, the Federal courts will hold void 
as against the citizens of other States. 
Smith M. P. Co. v. McGroarty, 136 U. S. 
237, 10 Sup. Ct. Rep. 1017. The mere 
fact that a partnership was organized 
under the laws of another State is not 
sufficient to justify the imposition of 
conditions upon its doing business within 
the State not required of local partner- 
ships. State v. Cadigan, 73 Vt. 245, 50 
Atl. 1079, 57 L. R. A. 666, 87 Am. St. 
714. For an instructive discussion of the 
doctrine of the " Privileges and Immuni- 
ties of Citizens in the Several States," see 
article by Win. J. Meyers in 1 Mich. 
Law Rev. 286, 364.] 

1 Extradition as between the States. 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



39 



to the public acts, (a) records, and judicial proceedings of every 



The return by one State of fugitives from 
justice which have fled to it from another 
State is only made a matter of rightful 
demand by the provisions of the Federal 
Constitution. In the absence of such 
provisions, it might be provided for by 
State law ; but the Constitution makes 
that obligatory which otherwise would 
rest in the imperfect and uncertain re- 
quirements of interstate comity. The 
subject has received much attention from 
the courts when having occasion to con- 
sider the nature and extent of the consti- 
tutional obligation. It lias also been the 
subject of many executive papers ; and 
several controversies between the execu- 
tives of New York and those of more 
southern States, are referred to in the re- 
cent Life of William H. Seward, by his 
son. QUpon extradition between States, 
see note to 36 L. ed. U. S. 934 ; upon ex- 
tradition interstate and international, see 
note to 41 L. ed. U. S. 1064. See also 
Whitten v. Tomlinson, 160 U. S. 231, 16 
Sup. Ct. Rep. 297, and note to 40 L. ed. 
U. S. 406. The sufficiency of the pro- 
ceedings upon which a governor bases 
Ids issue of a warrant for the arrest of 
an alleged fugitive may be inquired into 
on habeas corpus. Ex parte Tod, 12 S. D. 
886, 81 N. W. 637, 47 L. R. A. 566. A 
governor may revoke his warrant at any 
time before the alleged fugitive has been 
removed from the State. State v. Toole, 
69 Minn. 104, 72 N. W. 53, 38 L. R. A. 224. 
An escaped prisoner is a fugitive. Drink- 
all v. Spiegel, 68 Conn. 441, 36 Atl. 830, 36 
L. R. A. 486.] The following are among 
the judicial decisions: The offence for 
which extradition may be ordered need 
not have been an offence either at the 
common law or at the time the Constitu- 
tion was adopted ; it is sufficient that it 
was so at the time the act was committed, 
and when demand is made. Matter of 
Clark, 9 Wend. 212 ; People v. Donohue, 
84 N. Y. 438; Johnston v. Riley, 13 Ga. 
97 ; Matter of Fetter, 23 N. J. 311 ; Mat- 



ter of Voorhees, 32 N. J. 141 ; Morton v. 
Skinner, 48 Ind. 123; Matter of Hughes, 
Pliill. (N. C.) 57; Kentucky v. Dennison, 
24 How. 66; Ex parte Reggel, 114 U. S. 
642, 5 Sup. Ct. Rep. 748; In re Hooper, 
52 Wis. 699, 58 N. W. 741. The offence 
must have been actually committed 
within the State making the demand, 
and the accused must have fled there- 
from. Ex parte Smith, 3 McLean, 121 ; 
Jones v. Leonard, 50 Iowa, 106, 32 Am. 
Rep. 116; Hartman v. Aveline, 63 Ind. 
344; Wilcox v. Nolze, 34 Ohio St. 520. 
To be a fugitive it is not necessary that 
one should have left the State after in- 
dictment found, or to avoid prosecution ; 
but simply that, having committed a crime 
within it, he is when sought found in 
another State. Roberts v. Reilly, 116 
U. S. 80, 6 Sup. Ct. Rep. 291 ; s'tate v. 
Richter, 37 Minn. 436, 35 N. W. 9. [A 
person standing in one State and shoot- 
ing across the boundary line and injuring 
one in another State is not a fugitive 
from justice in the first State. State v. 
Hall, 115 N. C. 811, 20 S. E. 729, 44 Am. 
St. 501-3 The accused may be arrested 
to await demand. State v. Buzine, 4 
Harr. 572; Ex parte Cubreth, 49 Cal. 
436; Ex parte Rosenblat, 51 Cal. 285. 
See Tullis v. Fleming, 69 Ind. 15. But 
one cannot lawfully be arrested on a 
telegram from officers in another State 
and without warrant. Malcolrason v. 
Scott, 56 Mich. 459, 23 N. W. 166. Nor 
can he be surrendered before formal 
demand is made, and parties who seize 
and deliver him up without demand will 
be liable for doing so. Botts v. Williams, 
17 B. Monr. 677. Still if he is returned 
without proper papers to the State from 
whence he fled, this will be no sufficient 
ground for his discharge from custody. 
Dow's Case, 18 Penn. St. 37. Even 
forceable and unlawful abduction of a 
citizen gives a State no right to demand 
his release. Mahon v. Justice, 127 U. S. 
700, 8 Sup. Ct. Rep. 1204 ; fJCook v. Hart, 



(a) fJA mistake in understanding the true meaning of the statute of a sister State 
as interpreted by the courts thereof, is not a refusal to give full faith and credit to such 
statute, and does not give jurisdiction to the Supreme Court of the United States on 
writ of error. Banholzer v. N. Y. Life Ins. Co , 178 U. S. 402, 20 Sup. Ct. Rep. 972 ; 
Glenn v. Garth, 147 U. S. 360, 13 Sup. Ct. Rep. 350. And such statute is a matter of 
fact and must be proved as such. Lloyd v. Matthews, 155 U. S. 222, 15 Sup. Ct. 
Rep. 70.] 



40 CONSTITUTIONAL LIMITATIONS. [CH. II. 

other State. 1 (a) Many cases have been decided under these 



146 U. S. 183, 13 Sup. Ct. Rep. 40.] The 
question whether after such abduction in 
another country a State court will try a 
person, is not a federal question. Ker v. 
Illinois, 119 U. S. 436, 7 Sup. Ct. Rep. 
225. The charge must be made before a 
magistrate of the State where the offence 
was committed. Smith v. State, 21 Neb. 
552, 32 N. W. 594. The demand is to 
be made by the executive of the State, by 
which is meant the governor: Common- 
wealth v. Hall, 9 Gray, 262 ; and it is the 
duty of the executive of the State to 
which the offender has fled to comply : 
Johnston v. Riley, 13 Ga. 97 ; Ex parte 
Swearingen, 13 S. C. 74 ; People v. Pink- 
erton, 77 N. Y. 245; Work v. Corrington, 
34 Ohio St. 64, 32 Am. Rep. 345; but 
if he refuses to do so, the courts have 
no power to compel him : Kentucky v. 
Dennison, 24 How. 66; Matter of Man- 
chester, 5 Cal. 237. It is his duty to de- 
termine in some legal way whether the 
person is a fugitive from justice; the 
mere requisition is not enough ; but his 
determination is prima facie sufficient. 
Ex parte Ueggel, 114 U. S. 642, 5 Sup. 
Ct. Rep. 1148; Roberts v. Reilly, 116 
U. S. 80, 6 Sup. Ct. Rep. 291. See In re 
Jackson, 2 Flipp, 183. There must be a 
showing of sufficient cause for the arrest 
before the requisition can issue; but after 
it is issued and complied with, it is com- 
petent for the courts of either State on 
habeas corpus to look into the papers, and 



if they show no sufficient legal cause, to 
order the prisoner's discharge. Ex parte 
Smith, 3 McLean, 121; Matter of Clark, 
9 Wend. 212; Matter of Manchester, 
5 Cal. 237 ; Matter of Hey ward, 1 Sandf . 
701 ; Ex parte White, 49 Cal. 434 ; State 
v Hufford, 28 Iowa, 391 ; People v. Brady, 
56 N. Y. 182; Kingsbury's Case, 106 
Mass. 223 ; Ex parte McKean, 3 Hughes, 
"23; Jones v. Leonard, 50 Iowa, 106, 32 
Am. Rep. 116; Ex parte Powell, 20 Fla. 
806; State v. Richardson, 34 Minn. 115, 
24 N. W. 354 ; In re Mohr, 73 Ala. 503. 
As to the showing required, see State v. 
Swope, 72 Mo. 399; Ex parte Sheldon, 34 
Ohio St. 319 ; Ham v. State, 4 Tex. App. 
645. QA novel question was raised in 
In re Maney, 20 Wash. 509, 55 Pac. 930, 
72 Am. St. 130. A sheriff while conduct- 
ing a prisoner from one part of Idaho to 
another part of the same State, passed 
through a portion of the State of Wash- 
ington His prisoner in this latter State 
invoked the aid of the writ of habeas cor- 
pus on the theory that he was unlaw- 
fully detained. Writ denied.] If one is 
brought under extradition proceedings 
into the State where the crime was com- 
mitted, he will not be discharged by it 
for defects in proceedings, except on ap- 
plication of officers of the State from 
which he has been taken. Ex parte 
Barker, 87 Ala. 4, 6 So. 7. The Federal 
courts have no power to compel the State 
authorities to fulfil their duties under 



1 Const, of U. S. art. 4. This covers 
territorial judgments. Suesenbach v. 



Wagner, 41 Minn. 108, 42 N. W. Rep. 925. 
This clause of the Constitution has been 



(a) FJDpon conclusiveness and effect of judgments as between Federal and State 
courts, see notes to 21 C. C. A. 478 and 5 L. R. A. 508. A Federal court has jurisdic- 
tion of a suit to set aside a judgment of a State court relating to title to land in that 
State, when such judgment was obtained by fraud or without jurisdiction. Howard 
v. De Cordova, 177 U. S. 609, 20 Sup. Ct. Rep. 517 ; Cooper v. Newell, 173 U. S. 555, 
19 Sup. Ct. Rep. 506. See also Bryar v. Campbell, 177 U. S. 649, 20 Sup. Ct. Rep. 
794. In a suit to quiet title to land outside the State, service of process outside the 
State upon a non-resident of the State gives no jurisdiction of him. Dull v. Black- 
man, 169 U. S. 243, 18 Sup Ct. Rep. 333. 

Upon the question of fraud as a defence to a judgment of another State, see note 
to 18 L. ed. U. S. 475. An order of a court of a sister State is subject to the statute 
of limitations of the State in which it is sought to be enforced. Great W. Tel. Co. 
r. Purdy, 162 U. S. 329, 16 Sup. Ct. Rep. 810, aff. 83 Iowa, 430, 50 N. W. 45. A 
Federal court ma}' irfquire into the jurisdiction of a State court of another State to 
rentier a decree sued upon in the Federal court. Hekking v. Pfaff, 91 Fed. 60, 43 
L. R. A. 618.] 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



41 



several provisions, the most important of which are collected 
in the marginal notes. 



this clause of the Constitution. Ken- 
tucky v. Dennison, 24 How. 66. The 
executive may revoke his warrant, if sat- 
isfied it ought not to have issued. Work 
v. Corrington, 34 Ohio St. 64, 32 Am. 
Rep. 345. QWhen once within the cus- 
tody of the demanding State, he may be 
tried for any crime there charged against 
him. Lascelles v. Georgia, 148 U. S. 537, 
13 Sup. Ct. Rep. 687 ; State v. McNaspy, 
58 Kan. 691, 817, 38 L. R. A. 766, 50 Pac. 
895; Re Little, Mich. , 89 N. W. 38, 
57 L. R. A. 295. (Feb. 1902.) And may 
be sued in civil suit. Reid v. Ham, 54 
Minn. 305, 56 N. W. 35, 21 L. R. A. 
232, 40 Am. St. 333. Actual presence 
in demanding State is necessary to con- 
stitute flight. Constructive presence, as 
by firing bullet into it from another State, 
is insufficient. State v. Hall, 115 N. C. 
811, 20 S. E. 729, 28 L. It. A. 289, and 
note, 44 Am. St. 501. For other cases 
on interstate extradition, see Re Sultan, 
115 N. C. 57, 20 S. E. 375, 28 L. R. A. 
294, 44 Am. St. 433 ; Ex parte Hart, 63 
Fed. Rep. 249, 28 L. R. A. 801, and 
note.] 

Extradition to foreign countries is purely 
a national power, to be exercised under 
treaties. Holmes r. Jennison, 14 Pet. 540; 
Ex parte Holmes, 12 Vt. 631 ; People v. 
Curtis, 50 N. Y. 321. FJUpon interstate 
and international extradition, see note to 
41 L. ed. U. S. 1046. See also Whitten 
v. Tomlinson, 160 U. S. 231, 16 Sup. Ct. 
Rep 297, and note to 40 L. ed. U. S. 406. 
In Neeley v. Henkle, 180 U. S. 109, 126, 
21 Sup. Ct. Rep. 308, the question of the 
validity of an act providing for extradi- 



tion to foreign countries or to countries 
occupied by the United States was before 
the court and the act sustained as appli- 
cable to Cuba before that island was 
turned over to the home government 
after the Spanish war.] In the absence 
of a treaty there is no obligation to de- 
liver a fugitive: U. S. v. llauscher, 119 
U. S. 407, 7 Sup. Ct. Rep. 234 ; but by 
virtue of such a treaty an American 
criminal resident in a foreign country 
gets no right of asylum there so that he 
may not be removed therefrom by a 
State except under the provisions of the 
treaty. Ker v. Illinois, 119 U. S. 436, 7 
Sup. Ct. Rep. 225. Foreign governments 
must make the application, not individ- 
uals. In re Ferrelle, 28 Fed. Rep. 878. 
That where a person is extradicted from 
another country or another State on one 
charge, he should be discharged if not 
held upon that, see Commonwealth v. 
Hawes, 13 Bush, 697 ; In re Cannon, 47 
Mich. 481, 11 N. W. 280; State v. Van- 
derpool, 39 Ohio St. 272; Blandford v. 
State, 10 Tex. App. 627; State v. Hall, 
40 Kan. 338, 19 Pac. 918; U. S. v. 
Rauscher, 119 U. S. 407, 7 Sup. Ct. Rep. 
234. Contra, State v. Stewart, 60 Wis. 587, 
19 N. W. 429. See also, Hackney v. Welsh, 
107 Ind. 263, 8 N. E. 141 ; In re Miller, 23 
Fed. Rep. 32 ; Ex parte Brown, 28 Fed. 
Rep. 653. QBut when he is surrendered 
as a matter of comity and not under 
treaty stipulations, and the indictment is 
set aside as being defective, he is liable 
to arrest upon a subsequent complaint 
for same offence. Re Foss, 102 Cal. 347, 
36 Pac. 669, 25 L. R. A. 593, and note.] 



the subject of a good deal of discussion in 
the courts. [[See notes to 3 L. ed. U. S. 
411, 12 L. R. A. 574, 7 L. R. A. 578, 4 
L. R. A. 131, 1 L. R. A. 79. See also 
Reynolds v. Stockton, 140 U. S. 254, 11 
Sup. Ct. Rep. 773 ; Cole v. Cunningham, 
133 U. S. 107, 10 Sup. Ct. Rep. 269, aff. 
142 Mass. 47, 6 N. E. 782. See note on 
this case, 4 Har. L. Rev. 93.] It is well 
settled that if the record of a judgment 
shows that it was rendered without ser- 
vice of process or appearance of the 
defendant, or if that fact can be shown 
without contradicting the recitals of the 



record, it will be treated as void in any 
other State, notwithstanding this consti- 
tutional provision. Kibbe v. Kibbe, Kirby, 
119; Aldrich v. Kinney, 4 Conn. 380; 
Middlebrooks v. Ins. Co., 14 Conn. 301 ; 
Wood v. Watkinson, 17 Conn. 500; Bart- 
lett v. Knight, 1 Mass. 401 ; Bissell v. 
Bripgs, 9 Mass. 46'2 ; Hall v. Williams, 
6 Pick. 232; Woodworth v. Tremere, 
6 Pick. 354; Gleason v. Dodd, 4 Met. 
333; Commonwealth v. Blood, 97 Mass. 
538; Edson v. Edson, 108 Mass. 590; 11 
Am. Rep. 393; Kilburn r. Woodworth, 
6 Johns. 37 ; Robinson v. Ward's Execu- 



42 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 



The last provisions that we shall here notice are that the 



tors, 8 Johns. 86; Fenton v. Garlick, 8 
Johns. 194 ; Pawling v. Bird's Executors, 
13 Johns. 192; Holbrook v. Murray, 5 
Wend. 161 ; Bradshaw v. Heath, 13 Wend. 
407 ; Noyes v. Butler, 6 Barb. 613 ; Hoff- 
man v. Hoffman, 46 N. Y. 30 ; 7 Am. Rep. 
299; Thurber v. Blackbourne, 1 N. H. 
242 ; Whittier v. Wendell, 7 N. H. 257 ; 
Kangely v. Webster, 11 N. H.299; Adams 
v. Adams, 51 N. H. 388; 12 Am. Rep. 
134 ; Wilson v. Jackson, 10 Mo. 334. See 
McLaurine v. Monroe, 30 Mo. 462 ; Bime- 
ler v. Dawson, 5 111. 536 ; Warren v. 
McCarthy, 25 III. 95; Curtiss v. Gibbs, 
1 Pa. 406 ; Rogers v. Coleman, Hard. 416 ; 
Armstrong r. Harshaw, 1 Dev. 187 ; Nor- 
wood v. Cobb, 24 Texas, 551 ; Rape v. 
Heaton, 9 Wis. 328 ; McCauley v. Har- 
groves, 48 Ga. 50; 15 Am. Rep. 660; 
People v. Dawell, 25 Mich. 247, 12 Am. 
Rep. 260; Hood v. State, 56 Ind. 263; 
Lincoln v. Tower, 2 McLean, 473 ; West- 
ervelt v. Lewis, 2 McLean, 511 ; Railroad 
Co. . Trimble, 10 Wall. 367 ; Board of 
Public Works v. Columbia College, 17 
Wall. 521 ; St. Clair v. Cox, 106 U. S. 350, 
1 Sup. Ct. Rep. 350; Van Fossen v. State, 
37 Ohio St. 317 ; Cross v. Armstrong, 44 
Ohio St. 613. See Drake v. Granger, 22 
Fla. 348 ; ([Reynolds v. Stockton, 140 U. S. 
254, 1 1 Sup. Ct. Rep. 773 ; Guaranty Tr. 
& S. Dep. Co. v. Green Cove Spr. & M. 
R. Co., 139 U. S. 137, 11 Sup. Ct. Rep. 
92 ; Grover & B. S. M. Co. v. Radcliffe, 
137 U. S. 287, 11 Sup. Ct. Rep. 92; Sim- 
mons v. Saul, 138 U. S. 439, 11 Sup. Ct. 
Rep. 369; Wabash R. Co. v. Tourville, 
179 U. S. 322, 21 Sup. Ct. Rep. 113, aff. 
148 Mo. 614, 60 S. W. 300; Ward v. 
Boyce, 152 N. Y. 191, 46 N. E. 180, 36 
L. R. A. 549 ; Crumlish's Adm'r v. Central 
Imp. Co., 38 W. Va. 390, 18 S. E. 456, 23 
L. R. A. 120. A judgment against a non- 
resident entered on a note under a power 
in the note, to confess judgment if valid 
in the State where rendered is entitled to 
full faith and credit in other States. 
Crim v. Crim, 162 Mo. 544, 63 S. W. 489, 
64 L. R. A. 502.] But whether it would 
be competent to show, in opposition to 
the recitals of the record, that a judgment 
of another State was rendered without 
jurisdiction having been obtained of the 
person of the defendant, the authorities 
are not agreed. Many cases hold not. 
Field v. Gibbs, 1 Pet. C. C. 155 ; Green 



v. Sarmiento, 1 Pet. C. C. 74 ; Lincoln v. 
Tower, 2 McLean, 473 ; Westervelt v. 
Lewis, 2 McLean, 511; Roberts v. Cald- 
well, 5 Dana, 512; Hensley v. Force, 7 
Eng. 756; Pearce v. Olney, 20 Conn. 544; 
Hoxie v. Wright, 2 Vt. 263 ; Newcomb v. 
Peck, 17 Vt. 302; Willcox v. Kassick, 2 
Mich. 165 ; Bimeler v. Dawson, 5 111. 536 ; 
Welch v. Sykes, 8 111. 197; Wetherell 
v. Stillman, 65 Pa. St. 105; Lance v. 
Dugan, 13 Atl. Rep. 942 (Pa.) ; Lockhart 
v. Locke, 42 Ark. 17; Caughran v. Gil- 
man, 72 Iowa, 570, 34 N. W. 423. Other 
cases admit such evidence. Starbuck v. 
Murray, 5 Wend. 148, 21 Am. Dec. 
172; Holbrook v. Murray, 5 Wend 161; 
Shumway v. Stillman, 6 Wend. 447 ; Bor- 
den v. Fitch, 15 Johns. 121 ; Bartlet v. 
Knight, 1 Mass. 401, 2 Am. Dec. 36; 
Hall v. Williams, 6 Pick. 232; Aldrich 
v. Kinney, 4 Conn. 380; Bradshaw v. 
Heath, 13 Wend. 407 ; Hoffman v. Hoff- 
man, 46 N. Y. 30 ; Gleason v. Dodd, 4 
Met. 333 ; Kane v Cook, 8 Cal. 449 ; Nor- 
wood v. Cobb, 24 Texas, 551 ; Russell r. 
Perry, 14 N. H. 152; Rape v. Heaton, 9 
Wis. 328 ; Carleton v. Bickford, 13 Gray, 
591; McKay v. Gordon, 34 N. J. 286; 
Thompson v. Whitman, 18 Wall. 457; 
Stewart v. Stewart, 27 W. Va. 167; Chunn 
u. Gray, 51 Texas, 112. In People 17. 
Dawell, 25 Mich. 247, on an indictment 
for bigamy, in which the defendant re- 
lied on a foreign divorce from his first 
wife, it was held competent to show, in 
opposition to the recitals of the record, 
that the parties never resided in the for- 
eign State, and that the proceedings were 
a fraud. To the same effect are Hood 
v. State, 56 Ind. 263, 26 Am. Rep. 23; 
Penny wit v. Foote, 27 Ohio St. 600 ; Peo- 
ple v. Baker, 76 N. Y. 78, 32 Am. Rep. 
274; O'Dea v. O'Dea, 101 N. Y. 23, 4 
N. E. 110; Reed v. Reed, 52 Mich. 117, 
17 N. W. 720; Smith v. Smith, 19 Neb. 
706, 28 N. W. 296. [["Judgments recov- 
ered in one State in the Union, when 
proved in the courts of another, . . . (are 
not) re-examinable upon the merits, nor 
impeachable for fraud in obtaining them, 
if rendered by a court having jurisdiction 
of the cause and of the parties." Per 
Mr. Justice Gray in Hanley v. Donoghue, 
116 U. S. 1,6 Sup Ct. Rep. 242; Buck- 
ner v. Finley, 2 Pet. 592; M'Elmoyle v. 
Cohen, 13 Pet. 312; D'Arcy v. Ketchum, 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



43 



United States shall guarantee to every State a republican form 



11 How. 165; Christmas v. Russell, 6 
Wall. 290; and Thompson v. Whitman, 
18 Wall. 457. See also Maxwell v. 
Stewart, 22 Wall. 77 ; Broderick's Will, 
21 Wall. 603; Ellis v. Davis, 109 U. S. 
485, 3 Sup. Ct. Hep. 327 ; and Simmons 
. Saul, 138 U. S. 439, 11 Sup. Ct. Rep. 
369.] And see further, as to divorce 
cases, post, p. 678 el seq. Mr. Freeman 
discusses this general subject in his treat- 
ise on Judgments, c. 26. The same de- 
fences may be made to a judgment, when 
sued in another State, which could have 
been made to it in the State where ren- 
dered : Hampton v. McConnel, 3 Wheat. 
234; Mills v. Duryea, 7 Cranch, 481; 
Steele v. Smith, 7 W. & S. 447; Bank of 
the State v. Dalton, 9 How. 522 ; Scott v. 
Coleman, 5 Litt. 349, 16 Am. Dec. 71 ; 
but no others : Green v. Van Buskirk, 
7 Wall. 139; Christmas v. Russell, 6 
Wall. 290; Cheever v. Wilson, 9 Wall. 
108 ; Wernwag v. Pawling, 5 Gill & J. 
600, 25 Am. Dec. 317; Fletcher v. 
Ferrel, 9 Dana, 372, 35 Am. Dec. 143; 
People v. Dawell, 25 Mich. 247, 12 Am. 
Hep. 260; Dodge v. Coffin, 15 Kan. 277 ; 
[^Hancock National Bank v. Farnum, 
176 U. S. 640, 20 Sup. Ct. Rep. 506, 
rev. 20 R. I. 466, 40 Atl. 341 ; Thomp- 
son v. Taylor, 65 N. J. L. 107, 46 Atl. 
667, 54 L. R. A. 585. Courts of one 
State will not enforce the judgments of 
a sister State, so a bill will not lie to en- 
force specific performance of a decree for 
alimony rendered in a court of a sister 
State. Bullock v. Bullock, 61 N. J. Eq. 
444, 27 Atl. 435, 52 N. J. Eq. 561, 30 Atl. 
676, 46 Am. St. 528.] A foreign decree 
not appropriate to any part of the issue 
raised by the record is not conclusive col- 
laterally. Reynolds v. Stockton, 43 N. J. 
Eq. 211. 

This provision of the Constitution of 
the United States does not require that 
disabilities imposed upon a person con- 
victed of crime in one State should follow 
him and be enforced in other States. Sims 
v. Sims, 75 N. Y. 466, approving Common- 
wealth v. Green, 17 Mass. 515, and disap- 
proving Chase v. Blodgett, 10 N. H. 22, 
and State i>. Chandler, 3 Hawks, 393. 

The courts of the United States cannot 
enforce the penal laws of a State, and 
where an action was brought in such 
court by a State upon a judgment recov- 



ered in its own courts, the Federal court 
looked back of the judgment to the orig- 
inal demand, and refused to enforce the 
judgment. Wisconsin v. Pelican Ins. Co., 
127 U. S. 265, 8 Sup. Ct. Rep. 1370. FJBut 
in order that the law may be penal it 
must inflict the penalty as punishment 
for some offence against the State. It 
is not within the rule if the penalty is 
mere liquidated damages for a private 
wrong, still less if it is damages ascer- 
tained from the contract relations be- 
tween the parties. Huntington v. Attrill, 
146 U. S. 657, 13 Sup. Ct. Rep. 224, rev. 
70 Md. 191, 16 Atl. 651, 2 L. R. A. 779, 
14 Am. St. 344. See also upon "full 
faith and credit," note to this case in 
36 L. ed. U. S. 1123. 

Where a discontinuance of the suit is 
entered by consent of the parties, the en- 
try reciting that it is upon a settlement 
of the suit, it may be shown in an action 
in another State upon the original cause 
that the settlement was by an executory 
agreement which has not been fulfilled. 
Jacobs v. Marks, 182 U. S. 583, 21 Sup. 
Ct. Rep. 865, aff. 183 111. 533, 56 N. E. 
154. Execution cannot issue in one 
State upon a judgment rendered in an- 
other. The foreign judgment must first 
be reduced to a domestic judgment. 
Bennett v. Bennett, N. J. App. , 49 
Atl. 501 (June 25, 1901). 

The situs of a debt is with the debtor, 
so far at least as attachment and gar- 
nishment are concerned, and a judgment 
against a garnishee is not invalidated by 
the fact that his creditor, the principal 
defendant, resides outside the State and 
has been served only constructively by 
publication. If otherwise sufficient, the 
judgment must be given "full faith and 
credit " in every State. Chicago, R. I. & 
P. R. Co. v. Sturm, 174 U. S. 710, 19 Sup. 
Ct. Rep. 797, followed in King v. Cross, 
175 U. S. 396, 20 Sup. Ct. Rep. 139, 
aff. 19 R. I. 220, 33 Atl. 147. The judg- 
ment of the court of one State that a 
certain will works an equitable conver- 
sion into personalty of realty situated in 
another State is not binding upon the 
courts of that other State. Clarke v. 
Clarke, 178 U. S. 186, 20 Sup. Ct. Rep. 
873, aff. 70 Conn. 195, 483, 39 Atl. 155, 
40 Atl. 111. Upon effect of probate 
of will in another State, see Martin v. 



44 CONSTITUTIONAL LIMITATIONS. [CH. II. 

of government, 1 and that no State shall grant any title of 



Stovell, 103 Tenn. 1, 52 S. W. 296, 48 
L. R. A. 130, and note ; upon equitable 
conversion of real property into person- 
alt}-, see Cottman v. Grace, 112 N. Y. 
299, 19 N. E. 839,3 L. R. A. 145, and 
note ; also Bullard v. Chandler, 149 Mass. 
632,21 N. E. 951,5 L. R. A. 104, and note. 
An ex parte adjudication upon the domi- 
cil of decedent, made in grant of letters 
of administration, has no probative force 
outside the State. Overby v. Gordon, 177 
U. S. 214, 20 Sup. Ct. Rep. 603. A guar- 
dian appointed in one State cannot exer- 
cise any authority in another except so 
far as permitted by the laws of that 
other. He cannot even sue in a Federal 
court held in that other. Morgan v. 
Potter, 157 U. S. 195, 15 Sup. Ct. Rep. 
690. A voluntary assignment of his 
property made by an insolvent debtor 
for the payment of his debts and valid 
by the law of his residence covers his 
property in another State in which none 
of his creditors reside, provided the as- 
signee takes possession beiore the levy of 
judicial process, even though the assign- 
ment contains provisions for the prefer- 
ment of creditors which are prohibited 
by the law of the State where such prop- 
erty is situated. Burnett v. Kinney, 147 
U. S. 476, 13 Sup. Ct. Rep. 403. But 
where the insolvency proceedings are in- 
voluntary and the assignee has not yet 
reduced the goods in the sister State to 
possession, the title does not pass to him. 
Reynolds v. Adden, 136 U. S. 348, 10 
Sup. Ct. Rep. 843. A decree of a State 
court having jurisdiction of the parties 
that a conveyance of land outside the 
State was in fraud of the rignts of the 
plaintiff, but not directing defendant 
to reconvey, is of no force outside the 
State in which the decree is rendered. 
But a decree that defendant is indebted 
to plaintiff and shall pay certain sums of 
money is binding upon the courts of 
other States. Carpenter v. Strange, 141 
U. S. 87, 11 Sup. Ct. Rep. 960. An ap- 
pointment of an administrator has no 
extra-territorial force, and a judgment in 
one State against the administrator of 
the estate of X. is a personal judgment, 
and therefore cannot be pleaded by the 
same plaintiff against the administrator 



of the estate of X. in another State, be- 
cause the defendants are neither the same 
person, nor are they in privity, and the 
matter is not therefore res judicata with 
respect to the defendant in the second 
action. Johnson v. Powers, 137 U. S. 
156, 11 Sup. Ct. Rep. 525. A judgment 
cannot receive credit if it is not respon- 
sive to the issue presented by the plead- 
ings. Reynolds v. Stockton, 140 U. S. 
254, 11 Sup. Ct. Rep. 773. And the 
jurisdiction of the court is always open to 
inquiry. Guaranty Tr. & S. Dep. Co. v. 
Green Cove Springs & M. R. Co., 139 
U. S. 137. 11 Sup. Ct. Rep. 512; Streit- 
wolf v. Streitwolf, 181 U. S. 179, 21 Sup. 
Ct. Rep. 553, aff. 58 N. J. Eq. 563, 41 All. 
876, 43 Atl. 683, 78 Am. St. 630; Bell 
v. Bell, 181 U. S. 175, 21 Sup. Ct. Rep. 
551, aff. 157 N. Y. 719, 53 N. E. 1123. 
For validity of a consent decree, see 
Texas & P. Ry. Co. v. Southern P. Co., 
137 U. S. 48, 11 Sup. Ct. Rep. 10. But 
where the plaintiff is duly domiciled in 
the State in which he sues for divorce, 
and such State is the duly established 
matrimonial domicil of the parties, if the 
defendant is without the State, reason- 
able constructive service of notice if 
authorized by the laws of the State will 
give the court such jurisdiction that its 
decree of divorce will be valid through- 
out the United States. Atherton v. 
Atherton, 181 U. S. 155, 21 Sup. Ct. Rep. 
544, rev. 155 N. Y. 129, 49 N. E. 933, 40 
L. R. A. 291, 63 Am. St. 650. A decree 
of divorce granting alimony, the decree 
having been rendered by a court having 
jurisdiction, must be given full faith and 
credit in a sister State so far as the di- 
vorce and the alimony due at the date of 
the decree are concerned, but is of no 
force outside the State in which it is 
granted so far as it relates to alimony 
subsequently to become due. Lynde v. 
Lynde, 162 N. Y. 405, 56 N. E. 979, 48 
L. R. A. 679, 76 Am. St. 332, affd. in 
181 U. S. 183, 21 Sup. Ct. Rep. 555. fee 
also in this connection, Laing v. Rigney, 
160 U. S. 531, 16 Sup. Ct. Rep. 366 ; Ar- 
rington v. Arrington, 127 N. C. 190, 37 
S. E. 212, 52 L. R. A. 201, 80 Am. St. 
791 ; Trowbridge v. Spinning, 23 Wash. 
48, 62 Pac. 125, 64 L. R. A. 204, 83 Am. 



1 Const, of U. S. art. 4, 4. 



CH. II.] THE CONSTITUTION OF THE UNITED STATES. 45 

nobility. 1 The purpose of these is to protect a Union founded 
on republican principles, and composed entirely of republican 
members, against aristocratic and monarchical innovations. 2 

So far as a particular consideration of'the foregoing provisions 
falls within the plan of our present work, it will be more con- 
venient to treat of them in another place, especially as all of 
them which have for their object the protection of person or 
property are usually repeated in the bills of rights contained in 
the State constitutions, and will require some notice at our 
hands as a part of State constitutional law. 

Where powers are conferred upon the general government, 
the exercise of the same powers by the States is impliedly 
prohibited, wherever the intent of the grant to the national 
government would be defeated by such exercise. On this 
ground it is held that the States cannot tax the agencies or 
loans of the general government; since the power to tax, if 
possessed by the States in regard to these objects, might be so 
exercised as altogether to destroy such agencies, and impair or 
even destroy the national credit. 3 And where by the national 
Constitution jurisdiction is given to the national courts with a 
view to the more efficient and harmonious working of the system 
organized under it, it is competent for Congress in its wisdom 
to make that jurisdiction exclusive of the State courts. 4 On 
some other subjects State laws may be valid until the power of 
Congress is exercised, when they become superseded, either 
wholly, or so far as they are found inconsistent. The States 
may legislate on the subject of bankruptcy if there be no 
national bankrupt law. 5 State laws for organizing and disci- 

St. 806. Judgment by confession entered not fall within our province to discuss 

by an attorney acting upon a warrant these provisions. They have been much 

contained in a promissory note made in discussed in Congress within a few years, 

the State and conformably to its laws but in a party rather than a judicial, 

must be granted full faith and credit in spirit. See Story on Const. (4th ed.) 

sister State. Van Norman v. Gordon, c. 41 ; Luther v. Borden, 7 How. 1 ; Texas 

172 Mass. 576, 53 N. E. 267, 44 L. R. A. v. White, 7 Wall. 700 ; Cooley, Constitu- 

840, 70 Am. St. 304 ; Crim v. Crim, 162 tional Principles, ch. xi. 
Mo. 544, 63 S. W. 489, 54 L. R. A. 602, McCulloch v. Maryland, 4 Wheat. 

85 Am. St. 521. Judgment in rem upon 316,427; Weston v. Charleston, 2 Pet. 449. 

lands in another State is not binding in See cases collected, post, pp. 681-683. 
State where such lands are situated. * Martin v. Hunter's Lessee, 1 Wheat. 

Smithy. Smith, 174 111. 52, 60 N. E. 1083, 304; The Moses Taylor v. Hammons, 4 

43 L. R. A. 403 ; Bullock v. Bullock, 52 Wall. 411 ; The Ad Hine v. Trevor, 4 

N. J. Eq. 561, 30 Atl. 676, 46 Am. St. Wall. 555. And see note to these cases 

628. Upon this provision, see also Van in the Western Jurist, Vol. I. p. 241. 
Matre v. Sankey, 148 111. 536, 36 N. E. 8 Sturges t>. Crowninshield, 4 Wheat. 

628, 23 L. R. A. 665.] 122 ; McMillan v. McNeill, 4 Wheat. 209. 

1 Const, of U. S. art. 1, 10. And see post, pp. 416, 417. 

2 Federalist, Nos. 43 and 44. It does 



46 CONSTITUTIONAL LIMITATIONS. [CH. II. 

plining the militia are valid, except as they may conflict with 
national legislation; 1 and the States may constitutionally pro- 
vide for punishing the counterfeiting of coin 2 and the passing 
of counterfeit money, 3 since these acts are offences against the 
State, notwithstanding they may be offences against the nation 
also. 

The tenth amendment to the Constitution provides that the 
powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States 
respectively, or to the people. And it is to be observed of this 
instrument, that being framed for the establishment of a national 
government, it is a settled rule of construction that the limita- 
tions it imposes upon the powers of government are in all cases 
to be understood as limitations upon the government of the 
Union only, except where the States are expressly mentioned. 4 
As illustrations, the sixth and seventh amendments to the 
Constitution may be mentioned. These constitute a guaranty 
of the right of trial by jury ; but, as they do not mention the 
States, they are not to be understood as restricting their powers; 
and the States may, if they choose, provide for the trial of all 
offences against the States, as well as for the trial of civil cases 
in the State courts, without the intervention of a jury, or by 
some different jury from that known to the common law. 6 

1 Houston v. Moore, 5 Wheat. 1. 51. State, 19 Ohio St. 184; State v. Shutnpert, 

2 Harlan v. People, 1 Doug. (Mich.) 1 S. C. 85; Common wealth v. Hitchings, 
207. 5 Gray, 482; Bigelow v. Bipelow, 120 

3 Fox v. Ohio, 5 How. 410; United Mass. 320; Boyd v. Ellis, 11 Iowa, 97; 
States v. Marigold, 9 How. 560. And see Campbell v. State, 11 Ga. 353; State v. 
Hendrick's Case, 5 Leigh, 707 ; Jett v. Carro, 26 La. Ann. 377 ; Purvear v. 
Commonwealth, 18 Grat. 933; State v. Commonwealth, 5 Wall. 475; Twitchell 
Rankin, 4 Cold. 145; Moore v. People, v. Commonwealth, 7 Wall. 321. QSecond 
14 How. 13. and fourth amendments do not operate 

* Ban-on v. Baltimore, 7 Pet. 243 ; Liv- on States. Miller v. Texas, 153 U. S. 

ingston's Lessee v. Moore, 7 Pet. 469 ; Fox 535, 14 Sup. Ct. Rep. 874. Nor does fifth. 

v. Ohio, 6 How. 410; Smith v. Maryland, Thorington v. City Council of Montgom- 

18 How. 71 ; Kelly v. Pittsburgh, 104 U. ery, 147 U. S. 490, 13 Sup. Ct. Rep. 394; 

S. 78; Presser v. Illinois, 116 U. S. 252, 6 Brown v. New Jersey, 175 U. S. 172, 174, 

Sup. Ct. Rep. 580; Spies v. Illinois, 123 20 Sup. Ct. Rep. 77, 22 Sup. Ct. Rep. 120; 

U. S. 131, 8 Sup. Ct. Rep. 21 ; Buona- Capital City Dairy Co. v. Ohio, 183 U. S. 

parte v. Camden & Amboy R. R. Co., 238, 245. Nor the eighth. O'Neil v. Ver- 

Baldw. 220 ; James v. Commonwealth, 12 mont, 144 U. S. 323, 12 Sup. Ct. Rep. 693. 

S. & R. 220 ; Barker v. People, 3 Cow. Nor do the fifth and sixth. Davis v. 

686; Colt v. Eves, 12 Conn. 243; Jane v. Texas, 139 U. S. 651, 11 Sup. Ct. Rep. 

Commonwealth, 3 Met. (Ky.) 18; Lincoln 675. See also McElvaine v. Brush, 142 

. Smith, 27 Vt. 328 ; Matter of Smith, U. S 255, 12 Sup. Ct. Rep. 156.] 
10 Wend. 449; State v. Barnett, 3 Kan. 6 Twitchell v. Commonwealth, 7 

260; Reed v. Rice, 2 J. J. Marsh. 45, 19 Wall. 321 ; Justices v. Murray, 9 Wall. 

Am. Dec. 122 ; North Mo. R. R. Co. v. 274 ; Edwards v. Elliott, 21 Wall. 532 ; 

Maguire, 49 Mo. 490: Lake Erie, &c. R. Walker v. Sauvinet, 92 U. S. 90; Munn 

R. Co v. Heath, 9 Ind. 558 ; Prescott r. v. Illinois, 94 U. S. 113 ; Huston v. Wads- 



CH. II.] 



THE CONSTITUTION OF THE UNITED STATES. 



47 



With other rules for the construction of the national Consti- 
tution we shall have little occasion to deal. They have been 
the subject of elaborate treatises, judicial opinions, and legis- 
lative debates, which are familiar alike to the legal profession 
and to the public at large. So far as that instrument apportions 
powers to the national judiciary, it must be understood, for the 
most part, as simply authorizing Congress to pass the necessary 
legislation for the exercise of those powers by the Federal courts, 
and not as directly, of its own force, vesting them with that 
authority. The Constitution does not, of its own force, give 
to national courts jurisdiction of the several cases which it 
enumerates, but an act of Congress is essential, first, to create 
courts, and afterwards to apportion the jurisdiction among 
them. The exceptions are of those few cases of which the 
Constitution confers jurisdiction upon the Supreme Court by 
name. And although the courts of the United States administer 
the common law in many cases, 1 they can recognize as offences 
against the nation only those acts which are made criminal, 
and their punishment provided for, by acts of Congress. 2 It is 



worth, 5 Col. 213. See Butler v. State, 
97 Ind. 378; People v. Williams, 35 Hun, 
516. A State may give a court of equity 
jurisdiction of a suit to establish an 
equitable interest in land. Church v. 
Kelsey. 121 U. S. 282, 7 Sup. Ct. Rep. 
897. The seventh amendment has no ap- 
plication to demands against the govern- 
ment, or to counter-claims. McElrath v. 
United States, 102 U. S. 426. [A jury 
of eight may be provided for criminal 
cases not capital. Maxwell v. Dow, 176 
U. S. 581, 20 Sup. Ct. Rep. 448, 494. See 
also State v. Bates, 14 Utah, 293, 47 Pac. 
78, 43 L. R. A. 33, and note. The federal 
jury is the common-law jury of twelve 
men. It does not include statutory juries 
before justices of the peace, and facts ex- 
amined before such statutory juries may 
be re-examined otherwise than according 
to the course of the common law. Capi- 
tal Traction Co. v. Hot, 174 U. S. 1, 19 
Sup. Ct. Rep. 580. The fifth amendment 
does not apply to trials in tlie consular 
courts of the U. S. held in non-Christian 
countries. Ross v. Mclntyre, 140 U. S. 
453, 11 Sup. Ct. Rep. 897.] 

1 Townsend v. Todd, 91 U. S. 452 ; 
Elmwood v. Marcy, 92 U. S. 289 ; Rail- 
road Co. v. Georgia, 98 U. S. 359. 

2 Demurrer to an indictment for a libel 
upon the President and Congress. By 



the court : " The only question which 
this case presents is whether the circuit 
courts can exercise a common-law juris- 
diction in criminal cases. . . . The 
general acquiescence of legal men shows 
the prevalence of opinion in favor of the 
negative of the proposition. The course 
of reasoning which leads to this conclu- 
sion is simple, obvious, and admits of but 
little illustration. The powers of the 
general government are made up of con- 
cessions from the several States : what- 
ever is not expressly given to former, the 
latter expressly reserve. The judicial 
power of the United States is a constitu- 
tional part of these concessions : that 
power is to be exercised by courts organ- 
ized for the purpose, and brought into ex- 
istence by an effort of the legislative 
power of the Union. Of all the courts 
which the United States may, under their 
general powers, constitute, one only, the 
Supreme Court, possesses jurisdiction de- 
rived immediately from the Constitution, 
and of which the legislative power cannot 
deprive it. All other courts created by 
the general government possess no juris- 
diction but what is given them by the 
power that created them, and can be 
vested with none but what the power 
ceded to the general government will 
authorize it to confer. It is not necessary 



48 



CONSTITUTIONAL LIMITATIONS. 



[CH. II. 

otherwise in the States ; for the State courts take notice of, and 
punish as crimes, those acts which were crimes at the common 
law, except in a few States where it is otherwise expressly pro- 
vided by statute or Constitution. 



to inquire whether the general govern- 
ment, in any and what extent, possesses 
the power of conferring on its courts a 
jurisdiction in cases similar to the pres- 
ent ; it is enough that such jurisdiction 
has not been conferred by any legis- 
lative act, if it does not result to those 
courts as a consequence of their crea- 
tion." United States v. Hudson, 7 
Cranch, 32. See United States v. Cool- 
idge, 1 Wheat. 415. " It is clear there 
can be no common law of the United 
States. The Federal government is com- 
posed of twenty-four sovereign and inde- 
pendent States, each of which may have 
its local usages, customs, and common 
law. There is no principle which per- 
rades the Union, and has the authority 
of law, that is not embodied in the Con- 
stitution or laws of the Union. The 
common law could be made a part of our 
federal system only by legislative adop- 
tion." Per McLean, J., Wheaton v. 
Peters, 8 Pet. 691. See also Kendall 
t>. United States, 12 Pet. 524 ; Lorman v. 
Clarke, 2 McLean, 568 ; United States 



v. Lancaster, 2 McLean, 431 ; United 
States v. New Bedford Bridge, 1 Wood. 
& M. 403 ; United States v. Wilson, 3 
Blatch. 435 ; United States v. Barney, 5 
Blatch. 294. Upon this ground it was 
held in Gatton v. Chicago, R. I. & P. R. 
Co., 95 Iowa, 112, 63 N. W.589, 28 L. R! 
A. 556, that in the absence of congres- 
sional action, common carriers engaged 
in interstate commerce were not limited 
to reasonable charges. See also Fore- 
paugh v. Delaware, L. & W. R. Co., 128 
Pa. 217, 18 Atl. 503, 5 L. R. A. 508, and 
note, 15 Am. St. 672. These cases how- 
ever are overruled in W. U. Tel. Co. v. 
Call Pub. Co., 181 U. S. 92, 21 Sup. 
Ct. Rep. 561, aff. 58 Neb. 192, 78 N. W. 
619, holding that in the absence of con- 
gressional action, interstate telegraph 
companies are subject to the common- 
law rule of reasonable charges, and no 
unreasonable discrimination between pa- 
trons.] As to the adoption of the com- 
mon law by the States, see Van Ness v. 
Pacard, 2 Pet. 137, 144, per Story, J. ; and 
post, p. 51, and cases cited in notes. 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 49 



CHAPTER III. 

THE FORMATION AND AMENDMENT OF STATE CONSTITUTIONS. 

THE Constitution of the United States assumes the existence 
of thirteen distinct State governments, over whose people its 
authority was to be extended if ratified by conventions chosen 
for the purpose. Each of these States was then exercising the 
powers of government under some form of written constitution, 
and that instrument would remain unaffected by the adoption of 
the national Constitution, except in those particulars in which 
the two would come in conflict ; and as to those, the latter would 
modify and control the former. 1 But besides this fundamental 
law, every State had also a body of laws, prescribing the rights, 
duties, and obligations of persons within its jurisdiction, and 
establishing those minute rules for the various relations of life 
which cannot be properly incorporated in a constitution, but must 
be left to the regulation of the ordinary law-making power. 

By far the larger and more valuable portion of that body of 
laws consisted of the common law of England, which had been 
transplanted in the American wilderness, and which the colo- 
nists, now become an independent nation, had found a shelter 
of protection during all the long contest with the mother country > 
brought at last to so fortunate a conclusion. 

The common law of England consisted of those maxims of 
freedom, order, enterprise, and thrift which had prevailed in the 
conduct of public affairs, the management of private business, the 
regulation of the domestic institutions, and the acquisition, con- 
trol, and transfer of property from time immemorial. It was the 
outgrowth of the habits of thought and action of the people, and 
was modified gradually and insensibly from time to time as those 
habits became modified, and as civilization advanced, and new in- 
ventions introduced new wants and conveniences, and new modes 
of business. Springing from the very nature of the people them- 
selves, and developed in their own experience, it was obviously 
the body of laws best adapted to their needs, and as they took 
with them their nature, so also they would take with them these 

1 Livingston v. Van Ingen, 9 Johns. Dargan, 45 Ala. 310; Neal v. Delaware, 
607 ; State v. Cape Girarcleau, &c. R. R. 103 U. S. 370. 

Co., 48 Mo. 468 ; Mayor, &c. of Mobile v. 

4 



50 CONSTITUTIONAL LIMITATIONS. [CH. III. 

laws whenever they should transfer their domicile from one coun- 
try to another. 

To eulogize the common law is no part of our present purpose. 
Many of its features were exceedingly harsh and repulsive, and 
gave unmistakable proofs that they had their origin in times of 
profound ignorance, superstition, and barbarism. The feudal 
system, which was essentially a system of violence, disorder, and 
rapine, 1 gave birth to many of the maxims of the common law ; 
aud some of these, long after that system has passed away, may 
still be traced in our law, especially in the rules which govern the 
acquisition, control, and enjoyment of real estate. The criminal 
code was also marked by cruel and absurd features, some of 
which have clung to it with wonderful tenacity, even after the 
most stupid could perceive their inconsistency with justice and 
civilization. But, on the whole, the system was the best founda- 
tion on which to erect an enduring structure of civil liberty which 
the world has ever known. It was the peculiar excellence of the 
common law of England that it recognized the worth, and sought 
especially to protect the rights and privileges, of the individual 
man. Its maxims were those of a sturdy and independent race, 
accustomed in an unusual degree to freedom of thought and ac- 
tion, and to a share in the administration of public affairs ; and 
arbitrary power and uncontrolled authority were not recognized 
in its principles. Awe surrounded and majesty clothed the king, 
but the humblest subject might shut the door of his cottage 
against him, and defend from intrusion that privacy which was 
as sacred as the kingly prerogatives. 2 The system was the oppo- 
site of servile ; its features implied boldness and independent 
self-reliance on the part of the people ; and if the criminal code 
was harsh, it at least escaped the inquisitorial features which 
were apparent in criminal procedure of other civilized countries, 
and which have ever been fruitful of injustice, oppression, and 
terror. 

For several hundred years, however, changes had from time to 
time been made in the common law by means of statutes. Origi- 
nally the purpose of general statutes was mainly to declare and 
reaffirm such common-law principles as, by reason of usurpations 
and abuses, had come to be of doubtful force, and which, there- 
fore, needed to be authoritatively announced, that king and sub- 

1 " A feudal kingdom was a confed- was either a cipher or a tyrant, and a 

eracy of a numerous body, who lived in great portion of the people were reduced 

a state of war against each other, and of to personal slavery." Mackintosh, His- 

rapine towards all mankind ; in which the tory of England, c. 3. 
king, according to his ability and vigor, 2 See post, p. 425, 426. 



CH. III.] FOUMATION AND AMENDMENT OF CONSTITUTIONS. 



51 



ject alike might understand and observe them. Such was the 
purpose of the first great statute, promulgated at a time when 
the legislative power was exercised by the king alone, and which 
is still known as the Magna Charta of King John. 1 Such also 
was the purpose of the several confirmations of that charter, as 
well as of the Petition of Right, 2 and the Bill of Rights, 3 each 
of which became necessary by reason of usurpations. But further 
statutes also became needful because old customs and modes of 
business were unsuited to new conditions of things when property 
had become more valuable, wealth greater, commerce more ex- 
tended, and when all these changes had brought with them new 
desires and necessities, and also new dangers against which 
society as well as the individual subject needed protection. For 
this reason the Statute of Wills 4 and the Statute of Frauds and 
Perjuries 5 became important; and the Habeas Corpus Act 6 was 
also found necessary, not so much to change the law, 7 as to se- 
cure existing principles of the common law against being habit- 
ually set aside and violated by those in power. 

From the first the colonists in America claimed the benefit and 
protection of the common law. In some particulars, however, the 
common law as then existing in England was not suited to their 
condition and circumstances in the new country, and those partic- 
ulars they omitted as it was put in practice by them. 8 They also 



1 It is justly observed by Sidney that 
" Magna Charta was not made to restrain 
the absolute authority, for no such thing 
was in being or pretended (the folly of 
such visions seeming to have been re- 
served to complete the misfortunes and 
ignominy of our age), but it was to assert 
the native and original liberties of our 
nation by the confession of the king then 
being, that neither he nor his successors 
should any way encroach upon them." 
Sidney on Government, c. 3, sec. 27. 

2 1 Charles I. c. 1. 

3 1 William and Mary, sess. 2, c. 2. 

* 32 Henry VIII. c. 7, and 34 & 35 
Henry VIII. c. 5. 

6 29 Charles II. c. 3. 

6 31 Charles II. c. 2. 

7 " I dare not advise to cast the laws 
into a new mould. The work which I 
propound tendeth to the pruning and 
grafting of the law, and not the plowing 
up and planting it again, for such a re- 
move I should hold for a perilous innova- 
tion." Bacon's Works, Vol. II. p. 231, 
Phil. ed. 1852. 



8 " The common law of England is not 
to be taken, in all respects, to be that of 
America. Our ancestors brought with 
them its general principles, and claimed 
it as their birthright; but they brought 
with them and adopted only that portion 
which was applicable to their condition." 
Story, J., in Van Ness v. Pacard, 2 Pet. 
137. " The settlers of colonies in Amer- 
ica did not carry with them the laws of 
the land as being bound by them wher- 
ever they should settle. They left the 
realm to avoid the inconveniences and 
hardships they were under, where some 
of these laws were in force ; particularly 
ecclesiastical laws, those for payment of 
tithes, and others. Had it been under- 
stood that they were to carry these laws 
with them, they had better have stayed 
at home among their friends, unexposed 
to the risks and toils of a new settlement. 
They carried witli them a right to such 
parts of laws of the land as they should 
judge advantageous or useful to them ; a 
right to be free from those they thought 
hurtful, and a right to make such othen 



52 



CONSTITUTIONAL LIMITATIONS. 



[CH. III. 



claimed the benefit of such statutes as from time to time had 
been enacted in modification of this body of rules. 1 And when 
the difficulties with the home government sprung up, it was a 
source of immense moral power to the colonists that they were 
able to show that the rights they claimed were conferred by the 
common law, and that the king- and Parliament were seeking to 
deprive them of the common birthright of Englishmen. Did Par- 
liament attempt to levy taxes in America, the people demanded 
the benefit of that maxim with which for many generations every 
intelligent subject had been familiar, that those must vote the tax 



as they should think necessary, not in- 
fringing the general rights of English- 
men ; and such new laws they were to 
form as agreeable as might be to the laws 
of England." Franklin, Works by Sparks, 
Vol. IV. p. 271. See also Chisholm v. 
Georgia, 2 Dall. 419; Patterson v. Winn, 
5 Pet, 233; Wheaton v. Peters, 8 Pet. 591 ; 
Pollard v. Hagan, 3 How. 212 ; Common- 
wealth ?;. Leach, 1 Mass. 59 ; Common- 
wealth v. Knowhon, 2 Mass. 530; Com- 
monwealth v. Hunt, 4 Met. Ill ; Pearce 
v. Atwood, 13 Mass. 324 ; Sackett v. 
Sackett, 8 Pick. 309; Marks v. Morris, 

4 Hen. & M 463 ; Mayo t;. Wilson, 1 N. H. 
53; Houghton v. Page, 2 N. H. 42; State 
v. Rollins, 8 N. H. 550 ; State v. Buchanan, 

5 H. & J. 356; Sibley v. Williams, 3 G. & 
J. 62 ; State v. Cummings, 33 Conn. 260; 
Martin v. Bigelow, 2 Aiken, 187; Linds- 
ley v. Coats, 1 Ohio, 243 ; Bloom v. Rich- 
ards, 2 Ohio St. 287 ; Lyle v. Richards, 9 
S. & R. 322 ; State v. Campbell, T. U. P. 
Charlt. 166 ; Craft v. State Bank, 7 Ind. 
219; Dawson v. Coffman, 28 Ind. 220; 
Bogardus v. Trinity Church, 4 Sandf. Ch. 
633; Morgan v. King, 30 Barb. 9; Lan- 
sing w. Stone, 37 Barb. 15; Simpson v. 
State, 5 Yerg. 356; Crouch v. Hall, 15 III. 
263; Brown v. Pratt, 3 Jones (N. C.) Eq. 
202 ; Stout v. Keyes, 2 Doug. (Mich.) 184; 
Lorman v. Benson, 8 Mich. 18 ; Pierson 
v. State, 12 Cal. 149; Norris v. Harris, 15 
Cal. 226 ; Powell . Sims, 5 W. Va. 1 ; 
Colley v. Merrill, 6 Me. 55 ; State v. Ca- 
wood, 2 Stew. 360 ; Carter v. Balfour, 19 
Ala. 814; Barlow v. Lambert, 28 Ala. 
704 ; Goodwin v. Thompson, 2 Greene 
(Iowa), 329; Wagner v. Bissell, 3 Iowa, 
396 ; Noonan v. Stale, 9 Miss. 562 ; Pow- 
ell v. Brandon, 24 Miss. 343 ; Coburn v. 
Harvey, 18 Wis. 147 ; Reaume v. Cham- 
bers, 22 Mo. 36 ; Hamilton v. Kneeland, 1 



Nev. 10; People v. Green, 1 Utah, 11; 
Thomas v. Railroad Co., 1 Utah, 232; 
Reno Smelting Works v. Stevenson, 21 
Pac. Rep. 317 (Nev.). The courts of one 
State will presume the common law of 
a sister State to be the same as their 
own, in the absence of evidence to the 
contrary. Dunn v. Adams, 1 Ala. 527, 
s. c. 35 Am. Dec. 42 : Abell v Douglass, 

4 Denio, 305 ; Kermott v. Ayer, 11 Mich. 
181; Schurman v. Marley, 29 Ind. 458; 
Buckles v. Ellers, 72 Ind. 220; Tinkler 
v. Cox, 68 111. 119; Flagg v. Baldwin, 38 
N. J. Eq. 219; Eureka Springs Ry. Co. v. 
Timmons, 11 S. W. Rep.690 (Ark.). So of 
the law of a foreign country. Carpenter 
v. Grand Trunk Ry. Co., 72 Me. 388. So, 
that statutory modifications of the com- 
mon law are the same. Shattuck v. 
Chandler, 20 Pac. Rep. 225 (Kan.) ; Bu- 
chanan v. Hubbard, 21 N. E. 538 (Ind.). 
But see Atchison, &c. R. R. Co. v. Betts, 
15 Pac. Rep. 821 (Kan.). 

1 The acts of Parliament passed after 
the settlement of a colony were not in 
force therein, unless made so by express 
words, or by adoption. Commonwealth 
v. Lodge, 2 Grat. 579; Pemble v. Clifford, 
2 McCord, 31. See Swift v. Tousey, 5 
Ind. 196; Baker v. Mattocks, Quincy, 72; 
Fechheimer i;. Washington, 77 Ind. 366 ; 
Ray v. Sweeney, 14 Bush, 1 ; Lavalle v. 
Strobel, 89 111. 370 ; Cathcart v. Robinson, 

5 Pet. 264. Those amendatory of the 
common law, if suited to the condition of 
things in America, were generally adopted 
by tacit consent. For the differing views 
taken by English and American states- 
men upon the general questions here dis- 
cussed, see the observations by Governor 
Pownall, and the comments of Franklin 
thereon, 4 Works of Franklin, by Sparks, 
271. 



CII. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 53 

who are to pay it. 1 Did Parliament order offenders against the 
laws in America to be sent to England for trial, every American 
was roused to indignation, and protested against the trampling 
under foot of that time-honored principle, that trials for crime 
must be by a jury of the vicinage. Contending thus behind the 
bulwarks of the common law, Englishmen would appreciate and 
sympathize with their position, and Americans would feel doubly 
strong in a cause that not only was right, but the justice of which 
must be confirmed by an appeal to the consciousness of their 
enemies themselves. 

The evidence of the common law consisted in part of the declar- 
atory statutes we have mentioned, 2 in part of the commentaries 
of such men learned in the law as had been accepted as authority, 
but mainly in the decisions of the courts applying the law to ac- 
tual controversies. While colonization continued, that is to 
say, until the war of the Revolution actually commenced, these 
decisions were authority in the colonies, and the changes made in 
the common law up to the same period were operative in America 
also if suited to the condition of things here. The opening of the 
war of the Revolution is the point of time at which the continuous 
stream of the common law became divided, and that portion 
which had been adopted in America flowed on by itself, no longer 
subject to changes from across the ocean, but liable still to be 
gradually modified through changes in the modes of thought 
and of business among the people, as well as through statutory 
enactments. 

The colonists also had legislatures of their own, by which laws 
had been passed which were in force at the time of the separa- 
tion, and which remained unaffected thereby. When, therefore, 
they emerged from the colonial condition into that of indepen- 
dence, the laws which governed them consisted, first, of the com- 

1 " The blessing of Judah and Issachar courage. So that you may conclude that 

will never meet ; that the same people or no people overcharged with tribute is fit 

nation should be both the lion's whelp for empire." Lord Bacon on the True 

and the ass between burdens ; neither Greatness of Kingdoms, 

will it be that a people overlaid with taxes 2 Those statutes upon the points 

should ever become valiant and martial, which are covered by them are the best 

It is true that taxes levied by consent evidence possible. They are the living 

of the State do abate men's courage less, charters of English liberty, to the present 

as it hath been seen notably in the exer- day ; and as the forerunners of the Amer- 

cise of the Low Countries, and in some ican constitutions and the source from 

degree in the subsidies of England, for which have been derived many of the 

you must note that we speak now of the most important articles in their bills of 

heart and not of the purse ; so that al- rights, they are constantly appealed to 

though the same tribute or tax laid by when personal liberty or private rights 

consent or by imposing be all one to the are placed in apparent antagonism to the 

purse, yet it works diversely upon the claims of government. 



54 



CONSTITUTIONAL LIMITATIONS. 



[CH. III. 



mon law of England, so far as they had tacitly adopted it as 
suited to their condition ; second, of the statutes of England, or 
of Great Britain, amendatory of the common law, which they 
had in like manner adopted; and, third, of the colonial statutes. 1 
The first and second constituted the American common law, and 
by this in great part are rights adjudged and wrongs redressed 
in the American States to this day. 2 



1 The like condition of things is found 
to exist in the new States formed and 
admitted to the Union since the Constitu- 
tion was adopted. Congress creates ter- 
ritorial governments of different grades, 
but generally witli plenary legislative 
power either in the governor and judges, 
a territorial council, or a territorial legis- 
lature chosen by the people ; and the 
authority of this body extends to all right- 
ful subjects of legislation, subject, how- 
ever, to the disapproval of Congress. Vin- 
cennes University v. Indiana. 14 How. 268 ; 
Miners' Bank v. Iowa, 12 How. 1. Thus 
the Territory of Oregon had power to 
grant a legislative divorce. Maynard v. 
Hill, 125 U. S. 190, 8 Sup. Ct. Rep. 723. 
A territorial legislature may empower a 
probate court to grant a divorce. Whit- 
more v. Harden, 3 Utah, 121, 1 Pac. 465. 
The legislation, of course, must not be in 
conflict with the law of Congress confer- 
ring the power to legislate, but a variance 
from it may be supposed approved by 
that body, if suffered to remain without 
disapproval for a series of years after 
being duly reported to it. Clinton v. 
Englebrect, 13 Wall. 434, 446. See Wil- 
liams v. Bank of Michigan, 7 Wend. 539 ; 
Swan v. Williams, 2 Mich. 427 ; Stout v. 
Hyatt, 13 Kan. 232 ; Himman v. Warren, 
6 Oreg. 408. As to the complete control 
of Congress over the Territories, see 
United States ;. Reynolds, 98 U. S. 145 } 
National Bank v. Yankton, 101 U. S. 129. 
It may exclude polygamists from the 
right to vote. FJIt may declare void the 
charter of a church granted by the legis- 
lature of the Territory. Church of Jesus 
Christ of Latter Day Saints v. United 
States, 136 U. S. 1, 10 Sup. Ct. Rep. 792;] 
Murphy v. Ramsey, 114 U. S. 15, 5 Sup. 
Ct. Rep. 747. In Treadway v. Schnauber, 
1 Dak. 236, it was decided that without 
express authority a territorial legislature 
could not vote aid to a railroad company. 

2 A few of the States, to get rid of 
confusion in the law, deemed it desirable 



to repeal the acts of Parliament, and to 
re-enact such portions of them as were re- 
garded important here. See the Michi- 
gan repealing statute, copied from that of 
Virginia, in Code of 1820, p. 459. Others 
named a date or event, and provided by 
law that English statutes passed subse- 
quently should not be of force within 
their limits. In some of the new States 
there were also other laws in force than 
those to which we have above alluded, 
as for example, the ordinance of 1787, in 
the Northwest Territory. There has been 
much discussion of the question whether 
that ordinance was superseded in each 
of the States formed out of that Terri- 
tory by the adoption of a State constitu- 
tion, and admission to the Union. In 
Hogg v. The Zanesville Canal Manufac- 
turing Co., 5 Ohio, 410, it was held that 
the provision of the ordinance that the 
navigable waters of the Territory and 
the carrying-places between should be 
common highways, and forever free, was 
permanent in its obligation, and could not 
be altered without the consent both of the 
people of the State and of the United 
States, given through their representa- 
tives. "It is an article of compact; and 
until we assume the principle that the 
sovereign power of a State is not bound 
by compact, this clause must be consid- 
ered obligatory." Justice McLean and 
Judge Leavitt, in Spooner v. McConnell, 
1 McLean, 337, examine this subject at 
considerable length, and both arrive at 
the same conclusion with the Ohio court. 
The like opinion was subsequently ex- 
pressed in Palmer v. Commissioners of 
Cuyahoga Co., 3 McLean, 226, and in 
Jolly v. Terre Haute Drawbridge Co., 6 
McLean, 237. See also United States v. 
New Bedford Bridge, 1 Wood. & M. 401 ; 
Strader v. Graham, 10 How. 82 ; Doe v. 
Douglass, 8 Blackf. 12 ; Connecticut Mu- 
tual Life Ins. Co. v. Cross, 18 Wis. 109 ; 
Milwaukee Gaslight Co. v. Schooner 
Gamecock, 23 Wis. 144 ; Wisconsin River 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 



55 



Every colony had also its charter, emanating from the Crown, 
and constituting its colonial constitution. All but two of these 
were swept away by the whirlwind of revolution, and others sub- 
stituted which had been framed by the people themselves, through 
the agency of conventions which they had chosen. The excep- 
tions were those of Connecticut and Rhode Island, each of which 
States had continued its government under the colonial charter, 
finding it sufficient and satisfactory for the time being, and 
accepting it as the constitution for the State. 1 



Improvement Co. v. Lyons, 30 Wis. 61 ; 
Attorney-General v. Eau Claire, 37 Wis. 
400; Keokuk v. Packet Co., 45 Iowa, 196. 
Compare Woodburn v. Kilbourn Manuf. 
Co., 1 Abb. U. S. 158 ; 8. c. 1 Biss. 546. 
But in Escanaba Co. v. Chicago, 107 U. S. 
678, 2 Sup. Ct. Rep. 185, it was decided 
that limitations on legislative power im- 
posed by the ordinance ceased to have 
effect within a State upon its admission 
to the Union, except as the State had 
voluntarily adopted them. See Sands v. 
Manistee River Imp. Co., 123 U. S. 288, 8 
Sup. Ct. Rep. 113; Higgins v. Farmers' 
Ins. Co., 60 Iowa, 50, 14 N. W. 118, and 
also the early cases of La Plaisance Bay 
Harbor Co. v. Monroe, Walk. Ch. 155, 
and Depew v. Trustees, 5 Ind. 8 ; and 
with reference to the enabling acts of 
Oregon, Louisiana, and California, in 
Willamette Iron Bridge Co. v. Hatch, 125 
U. S. 1, 8 Sup. Ct. Rep. 811 ; Hamilton v. 
Vicksburg, &c. R. R. Co., 119 U. S. 280, 
7 Sup. Ct. Rep. 206; Cardwell v. Ameri- 
can Bridge Co., 113 U. S. 205, 5 Sup. Ct. 
Rep. 423; People v. Potrero, &c. R. R. 
Co., 67 Cal. 166, 7 Pac. 445. And the 
provision that the rivers shall be forever 
free refers not to phylical obstructions, 
but to the imposition of duties for the 
use of the navigation, and any discrimi- 
nation against citizens of other States. 
Escanaba Co. v. Chicago, supra : ; Huse v. 
Glover, 119 U. S. 543, and cases last cited. 
But a State may charge tolls for the use 
of improvements it has made in its navi- 
gable rivers. Huse v. Glover; Sands v. 
Manistee River Imp. Co., supra ; Palmer 
v. Com'rs, 3 McLean, 226; Spooner v. 
McConnell, 1 McLean, 337. See also, 
post, 863, 864. 

In some of the States formed out of the 
territory acquired by the United States 
from foreign powers, traces will be found 
of the laws existing before the change of 



government. Louisiana has a code pecu- 
liar to itself, based upon the civil law. 
Much of Mexican law, and especially as 
regards lands and land titles, is retained 
in the systems of Texas and California. 
In Michigan, when the acts of Parlia- 
ment were repealed, it was also deemed 
important to repeal all laws derived from 
France, through the connection with the 
Canadian provinces, includingtheCWume 
de Paris, or ancient French common law. 
In the mining States and Territories a 
peculiar species of common law, relating 
to mining rights and titles, has sprung up, 
having its origin among the miners, but 
recognized and enforced by the courts. 
Regarding the canon and ecclesiastical 
law, and their force in this country, see 
Crump c. Morgan, 3 Ired. Eq. 91 ; Le Bar- 
ron v. Le Barron, 35 Vt. 365. That con- 
stitutions are supposed to be framed in 
reference to existing institutions, see Pope 
v. Phifer, 3 Heisk. 686. A change in a 
constitution cannot retroact upon legis- 
lation so as to enlarge its scope. Dewar 
v. People, 40 Mich. 401. See Dullam v. 
Willson, 53 Mich. 392, 19 N. W. 112. 

1 It is worthy of note that the first 
well-authenticated case in which a legis- 
lative act was held void for incompati- 
bility with the constitution of the State, 
was decided under one of these charters. 
It was that of Trevett v. Weeden, decided 
in Rhode Island in 1786. See Arnold's 
History of Rhode Island, Vol. II. c. 24. 
Mr. Brinton Coxe, in his book on Judicial 
Power and Constitutional Legislation, 
makes much use of this case, and refers 
to others decided near the same time. 
Mr. Gouveneur Morris, in an address to 
the Pennsylvania Assembly in 1785, 
speaks of a law passed in New Jersey 
having been declared unconstitutional 
and void, and is supposed to have referred 
to the unreported case of Holmes v. 



56 CONSTITUTIONAL LIMITATIONS. [CH. III. 

New States have since, from time to time, formed constitutions, 
either regularly in pursuance of enabling acts passed by Congress, 
or irregularly by the spontaneous action of the people, or under 
the direction of the legislative or executive authority of the Terri- 
tory to which the State succeeded. Where irregularities existed, 
they must be regarded as having been cured by the subsequent 
admission of the State into the Union by Congress; and there 
were not wanting in the case of some States plausible reasons for 
insisting that such admission had become a matter of right, and 
that the necessity for an enabling act by Congress was dispensed 
with by the previous stipulations of the national government in 
acquiring the territory from which such States were formed. 1 
Some of these constitutions pointed out the mode for their own 
modification; others were silent on that subject; but it has been 
assumed that in such cases the power to originate proceedings for 
that purpose rested with the legislature of the State, as the de- 
partment most nearly representing its general sovereignty; and 
this is doubtless the correct view to take of this subject. 2 

The theory of our political system is that the ultimate sover- 
eignty is in the people, from whom springs all legitimate author- 
ity. 3 The people of the Union created a national constitution, and 
conferred upon it-powers of sovereignty over certain subjects, and 
the people of each State created a State government, to exercise 
the remaining powers of sovereignty so far as they were disposed 
to allow them to be exercised at all. By the constitution which 
they establish, they not only tie up the hands of their official 
agencies, but their own hands as well ; and neither the officers of 
the State, nor the whole people as an aggregate body, are at lib- 
erty to take action in opposition to this fundamental law. But in 

Wallow, which Mr. Coxe thought must Bank, 20 Ohio, 283. The debates in the 

have been decided in 1786 or 1787, but Senate of the United States on the admis- 

which President Scott of Rutger's College, sion of Michigan to the Union go fully 

who has examined the original files and into this question. See Benton's Abridg- 

records, informs us was decided in 1780. ment of Congressional Debates, Vol. 

The next reported case in which a like XIII. pp. 69-72. And as to the right 

result was reached was Bayard v. Single- of the people of a Territory to originate 

ton, to be found in Martin, N. C. Rep. measures looking to an application for 

p. 48. admission to the Union, see Opinions of 

1 This was the claim made on behalf Attorneys-General, Vol. II. p. 726. 
of Michigan ; it being insisted that the 2 gee Jameson on Constitutional Con- 
citizens, under the provisions of the ordi- ventions, c. 8. 

nance of 1787, whenever the Territory ac- 8 McLean, J., in Spooner v. McCon- 

quired the requisite population, had an nell, 1 McLean, 347; Waite, Ch. J., in 

absolute right to form a constitution and Minor v. Happersett, 21 Wall. 162, 172 ; 

be admitted to the Union under it. See Campbell's Case, 2 Bland Ch. 209, 20 

Scott '. Detroit Young Men's Society's Am. Dec. 360; Reynolds v. Baker, 6 Cold. 

Lessee, 1 Doug. (Mich.) 119, and the con- 221 ; Potter's Dwarris on Stat. c. 1. 
t-ary opinion in Myers v. Manhattan 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 57 

every State, although all persons are under the protection of the 
government, and obliged to conform their action to its laws, there 
are always some who are altogether excluded from participation 
in the government, and are compelled to submit to be ruled by 
an authority in the creation of which they have no choice. The 
political maxim, that government rests upon the consent of the 
governed, appears, therefore, to be practically subject to many 
exceptions; and when we say the sovereignty of the State is 
vested in the people, the question very naturally presents itself, 
What are we to understand by The People as used in this 
connection? 

What should be the correct rule upon this subject, it does not 
fall within our province to consider. Upon this men will theorize ; 
but the practical question precedes the formation of the Constitu- 
tion and is addressed to the people themselves. As a practical 
fact the sovereignty is vested in those persons who are permitted 
by the constitution of the State to exercise the elective franchise. 1 
Such persons may have been designated by description in the en- 
abling act of Congress permitting the formation of the constitu- 
tion, if any such there were, or the convention which framed the 
constitution may have determined the qualifications of electors 
without external dictation. In either case, however, it was essen- 
tial to subsequent good order and contentment with the govern- 
ment, that those classes in general should be admitted to a voice 
in its administration, whose exclusion on the ground of want of 
capacity or of moral fitness could not reasonably and to the 
general satisfaction be defended. 

Certain classes have been almost universally excluded, the 
slave, because he is assumed to be wanting alike in the intelli- 
gence and the freedom of will essential to the proper exercise of 
the right; the woman, from mixed motives, but mainly, perhaps, 
because, in the natural relation of marriage, she was supposed to 
be under the influence of her husband, and, where the common 
law prevailed, actually was in a condition of dependence upon 
and subjection to him; 2 the infant, for reasons similar to those 
which exclude the slave; the idiot, the lunatic, and the felon, on 
obvious grounds ; and sometimes other classes for whose exclusion 
it is difficult to assign reasons so generally satisfactory. 

The theory in these cases we take to be that classes are ex- 
cluded because they lack either the intelligence, the virtue, or the 

1 "The people, for political purposes, 2 Some reference is made to the rea- 

must he considered as synonymous with sons for the exclusion in the opinions in 

qualified voters." Blair v. Ridgely, 41 Bradwell v. State, 16 Wall. 130, and 

Mo. 63. Minor v. Happersett, 21 Wall. 162. 



58 CONSTITUTIONAL LIMITATIONS. [CH. III. 

liberty of action essential to the proper exercise of the elective 
franchise. But the rule by which the presence or absence of 
these qualifications is to be determined, it is not easy to establish 
on grounds the reason and propriety of which shall be accepted by 
all. It must be one that is definite and easy of application, and 
it must be made permanent, or an accidental majority may at any 
time change it, so as to usurp all power to themselves. But to 
be definite and easy of application, it must also be arbitrary. The 
infant of tender years is wanting in competency, but he is daily 
acquiring it, and a period is fixed at which he shall conclusively 
be presumed to possess what is requisite. The alien may know 
nothing of our political system and laws, and he is excluded until 
he has been domiciled in the country for a period judged to be 
sufficiently long to make him familiar with its institutions; races 
are sometimes excluded arbitrarily ; and at times in some of the 
States the possession of a certain amount of property, or the ca- 
pacity to read, seems to have been regarded as essential to satis- 
factory proof of sufficient freedom of action and intelligence. 1 

Whatever rule is once established must remain fixed until 
those who by means of it have the power of the State put into 
their hands see fit to invite others to participate with them in its 
exercise. Any attempt of the excluded classes to assert their 
right to a share in the government, otherwise than by operating 
upon the public opinion of those who possess the right of suffrage, 
would be regarded as an attempt at revolution, to be put down 
by the strong arm of the government of the State, assisted, if 
need be, by the military power of the Union. 2 

In regard to the formation and amendment of State constitu- 
tions, the following appear to be settled principles of American 
constitutional law : 

I. The people of the several Territories may form for them- 
selves State constitutions whenever enabling acts for that purpose 
are passed by Congress, but only in the manner allowed by such 
enabling acts, and through the action of such persons as the en- 

1 State v. Woodruff, 2 Day, 604 ; Cat- utes, referring to the people of a muni- 

lin v. Smith, 2 S. & R. 267 ; Opinions cipality the question of voting aid to 

of Judges, 18 Pick. 675. See Mr. Ban- internal improvements, have confined 

croft's synopsis of the first constitutions the right of voting on the question to 

of the original States, in his History of taxpayers. 

the American Revolution, c. 6. For 2 The case of Rhode Island and the 

some local elections it is quite common "Dorr Rebellion," so popularly known, 

still to require property qualification or will be fresh in the minds of all. For 

the payment of taxes in the voter; but a discussion of some of the legal as- 

statutes of this description are generally pects of the case, see Luther r. Borden, 

construed liberally. See Crawford v. 7 How. 1. 
Wilson, 4 Barb. 604. Many special stat- 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 59 

abling acts shall clothe with the elective franchise to that end. 
If the people of a Territory shall, of their own motion, without 
such enabling act, meet in convention, frame and adopt a consti- 
tution, and demand admission to the Union under it, such action 
does not entitle them, as matter of right, to be recognized as a 
State; but the power that can admit can also refuse, and the 
territorial status must be continued until Congress shall be satis- 
fied to suffer the Territory to become a State. There are always 
in these cases questions of policy as well as of constitutional law 
to be determined by the Congress before admission becomes a 
matter of right, whether the constitution formed is republican; 
whether suitable and proper State boundaries have been fixed 
upon; whether the population is sufficient; whether the proper 
qualifications for the exercise of the elective franchise have been 
agreed to; whether any inveterate evil exists in the Territory 
which is now subject to control, but which might be perpetuated 
under a State government, these and the like questions, in 
which the whole country is interested, cannot be finally solved 
by the people of the Territory for themselves, but the final deci- 
sion must rest with Congress, and the .judgment must be favorable 
before admission can be claimed or expected. 1 

II. In the original States, and all others subsequently admitted 
to the Union, the power to amend or revise their constitutions 
resides in the great body of the people as an organized body poli- 
tic, who, being vested with ultimate sovereignty, and the source 
of all State authority, have power to control and alter at will the 
law which they have made. But the people, in the legal sense, 
must be understood to be those who, by the existing constitution, 
are clothed with political rights, and who, while that instrument 
remains, will be the sole organs through which the will of the 
body politic can be expressed. 2 

III. But the will of the people to this end can only be ex- 
pressed in the legitimate modes by which such a body politic 
can act, and which must either be prescribed by the constitution 
whose revision or amendment is sought, or by an act of the legis- 
lative department of the State, which alone would be author- 

1 When a constitution has been such changes and additions, and it is ad- 
adopted by the people of a Territory, mitted, the changes become a part of the 
preparatory to admission as a State, and constitution, and binding as such, al- 
Congress prescribes certain changes and though not submitted to the people for 
additions to be adopted by the legisla- approval. Brittle v. People, 2 Neb. 198 ; 
ture as part of the constitution, and de- Secombe v. Kittelson, 29 Minn. 665, 12 
clares such changes and additions to be N. W. 619. 

fundamental conditions of admission of 2 Luther v. Borden, 7 How. 1 j Wells 

the State, and the legislature accepts v. Bain, 75 Penn. St. 39. 



60 



CONSTITUTIONAL LIMITATIONS. 



[CH. III. 



ized to speak for the people upon this subject, and to point out a 
mode for the expression of their will in the absence of any pro- 
vision for amendment or revision contained in the constitution 
itself. 1 



1 Opinions of Judges, 6 Gush. 673. The 
first constitution of New York contained 
no provision for its own amendment, and 
Mr. Hammond, in his Political History of 
New York, Vol. I. c. 26, gives a very 
interesting account of the controversy 
before the legislature and in the council 
of revision as to the power of the legisla- 
ture to call a convention for revision, and 
as to the mode of submitting its work to 
the people. In Collier v. Frierson, 24 
Ala. 100, it appeared that the legislature 
had proposed eight different amendments 
to be submitted to the people at the same 
time; the people had approved them, 
and all the requisite proceedings to 
make them a part of the constitution had 
been had, except that in the subsequent 
legislature the resolution for their ratifi- 
cation had, by mistake, omitted to recite 
one of them. On the question whether 
this one had been adopted, we quote from 
the opinion of the court : " The constitu- 
tion can be amended in but two ways : 
either by the people who originally 
framed it, or in the mode prescribed by 
the instrument itself. . . . We entertain 
no doubt that to change the constitution 
in any other mode than by a convention, 
every requisition which is demanded by 
the instrument itself must be observed, 
and the omission of any one is fatal to 
the amendment. We scarcely deem any 
argument necessary to enforce this prop- 
osition. The constitution is the supreme 
and paramount law. The mode by which 
amendments are to be made under it is 
clearly defined. It has been said that 
certain acts are to be done, certain req- 
uisitions are to be observed, before a 
change can be effected. But to what 
purpose are those acts required or those 
requisitions enjoined, if the legislature or 
any department of the government can 
dispense with them ? To do so would be 
to violate the instrument which they are 
Bworn to support, and every principle of 
public law and sound constitutional pol- 
icy requires the courts to pronounce 
against any amendment which is not 
shown to have been made in accordance 
with the rules prescribed by the funda- 



mental law." See also State v. McBride, 
4 Mo. 803; State v. Tufly, 19 Nev. 391, 
12 Pac. 835; In re Const. Convention, 14 
R. I. 649; Koehler v. Hill, 00 Iowa, 543, 
14 N. W. 738, 15 N. W. 609. In the last 
case it is held that where a proposed 
amendment must be entered at length upon 
the journal, neither the enrolled resolu- 
tion embodying it nor parol evidence can 
be received to contradict the journal ; 
nor are the courts debarred from as- 
certaining the truth by the fact that a 
second general assembly passed the 
amendment as enrolled. But if the 
proposition is recorded in the Senate 
journal and amended in the House and 
the amendment is then recorded in the 
Senate, it is not a valid objection that 
the whole proposition is not recorded in 
one place in the Senate journal. In re 
Senate File, 25 Neb. 864, 41 N. W. Rep. 
981. It is enough if the journal entry is 
by reference to the title. Thomason v. 
Ruggles, 69 Cal. 465, 11 Pac. 20. Where 
the constitution provided that amend- 
ments should be proposed by one general 
assembly, and approved and submitted to 
popular vote by a second, and seventeen 
amendments were thus approved together, 
and the second general assembly passed 
upon and submitted eight by one bill and 
nine by another, the submission was held 
sufficient and valid. Trustees of Univer- 
sity v Mclver, 72 N. C. 76. Several 
propositions which in effect are but one 
amendment may be submitted to the peo- 
ple as one amendment. State v. Timme, 
54 Wis. 318, 11 N. W. 785. A high license 
amendment and a prohibitory amendment 
may be submitted at one time. In re 
Senate File, supra. An amendment be- 
comes effective when the votes are can- 
vassed. The Governor need not make a 
proclamation. Sewall v. State, 15 Tex. 
App 56; Wilson v. State, id. 150. A 
proposed amendment which has duly 
passed the legislature does not in Penn- 
sylvania require to be passed upon by the 
Governor before it can be submitted to 
the people. Com. v. Griest, 196 Pa. 396, 
46 Atl. 505, 50 L. R, A. 668 ; State r. Dahl, 
6 N. D. 81, 68 N. W. 418, 84 L. R. A. 97. 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 



61 



IV. In accordance with universal practice, and from the very 
necessity of the case, amendments to an existing constitution, or 
entire revisions of it, must be prepared and matured by some 
body of representatives chosen for the purpose. It is obviously 
impossible for the whole people to meet, prepare, and discuss the 
proposed alterations, and there seems to be no feasible mode by 
which an expression of their will can be obtained, except by ask- 
ing it upon the single point of assent or disapproval. But no 
body of representatives, unless specially clothed with power for 
that purpose by the people when choosing them, can rightfully 
take definitive action upon amendments or revisions; they must 
submit the result of their deliberations to the people who alone I 
are competent to exercise the powers of sovereignty in framing / 
the fundamental law for ratification or rejection. The consti- f 
tutional convention is the representative of sovereignty only in a 
very qualified sense, and for the specific purpose, and with the 
restricted authority to put in proper form the questions of amend- 
ment upon which the people are to pass; but the changes in the 
fundamental law of the State must be enacted by the people 
themselves. 1 



\ 



Whether or not a proposed amendment 
has been duly adopted is a question for the 
courts, and where the Governor lias under 
statute appointed a commission to deter- 
mine the result of the popular vote upon 
the proposed amendment, the proceedings 
of such commission may be reviewed by 
certiorari, notwithstanding the Governor's 
proclamation that the amendment has 
been duly adopted. State v. Wurts, 63 
N. J. L. 289, 43 All. 744, 45 L. R. A. 251. 
In voting on a constitutional amendment 
voters exercise a legislative function and 
courts cannot enjoin the Secretary of 
State from publishing notice of the elec- 
tion even though the amendment, if 
adopted, may be invalid. People v. 
Mills, Col. , 70 Pac. 322 (June 30, 
1902 ).~] 

1 See, upon this subject, Jameson on 
the Constitutional Convention, 41 5-418, 
and 479-520. This work is so complete 
and satisfactory in its treatment of the 
general subject as to leave little to be 
said by one who shall afterwards attempt 
to cover the same ground. Where a 
convention to frame amendments to the 
constitution is sitting under a legislative 
act from which all its authority is de- 
rived, the submission of its labors to a 



vote of the people in a manner different 
from that prescribed by the act is nuga- 
tory. Wells v. Bain, 75 Penn. St. 39. 
Such a convention has no inherent rights ; 
it has delegated powers only, and must 
keep within them. Woods's Appeal, 75 
Penn. St. 59. Compare Loomis v. Jack- 
son, 6 W. Va. 613, 708. The Supreme 
Court of Missouri has expressed the 
opinion that it was competent. for a con- 
vention to put a new constitution in 
force without submitting it to the people. 
State v. Neal, 42 Mo. 119. But this was 
obiter. But if, after being accepted by 
the people, the convention modifies it and 
promulgates it as modified, and the con- 
stitution as promulgated is recognized as 
valid by the executive and legislative 
branches of the government, the modifi- 
cations must be deemed valid. Miller v. 
Johnson, 92 Ky. 589, 18 S. W. 522, 15 L. 
R. A. 524.] Where proposed amendments 
are required to be submitted to the people, 
and approved by a majority vote, it is a 
mooted question whether a majority of 
those voting thereon is sufficient, when it 
appears that they do not constitute a 
majority of all who voted at the same 
election. See State v. Swift, 69 Ind. 505; 
and cases cited, post, 892-894. [That pub- 



62 CONSTITUTIONAL LIMITATIONS. [CH. III. 

V. The power of the people to amend or revise their constitu- 
tions is limited by the Constitution of the United States in the 
following particulars : 

1. It must not abolish the republican form of government, 
since such act would be revolutionary in its character, and would 
call for and demand direct intervention on the part of the gov- 
ernment of the United States. 1 

2. It must not provide for titles of nobility, or assume to vio- 
late the obligation of any contract, or attaint persons of crime, 
or provide ex post facto for the punishment of acts by the courts 
which were innocent when committed, or contain any other 
provision which would, in effect, amount to the exercise of 
any power expressly or impliedly prohibited to the States by the 
Constitution of the Union. For while such provisions would not 
call for the direct and forcible intervention of the government 
of the Union, it would be the duty of the courts, both State and 
national, to refuse to enforce them, and to declare them altogether 
void, as much when enacted by the people in their primary 
capacity as makers of the fundamental law, as when enacted 
in the form of statutes, through the delegated power of their 
legislatures. 2 

VI. Subject to the foregoing principles and limitations, each 
State must judge for itself what provisions shall be inserted in its 
constitution; how the powers of government shall be apportioned 
in order to their proper exercise ; what protection shall be thrown 
around the person or property of the citizen; and to what extent 
private rights shall be required to yield to the general good. 3 

lication of proposed amendments with the Co. v Louisiana Light Co., 115 U. S. 650, 

statutes adopted at same session of legis- 6 Sup. Ct. Rep. 252 ; Fisk v. Jefferson 

lature as that in which the amendments Police Jury, 116 U. S. 131, 6 Sup. Ct. 

were proposed is a sufficient publication Rep. 329 ; fJBier v. McGehee, 148 U. S. 

if made a sufficiently long time before 137, 13 Sup. Ct. Rep. 580.] The fact that 

election, see State v. Grey, 21 Nev. 378, the constitution containing the obnoxious 

32 Pac. 190, 19 L. R. A. 134.] provision was submitted to Congress, and 

1 Const, of U. S. art. 4, 4 ; Federal- the State admitted to full rights in the 
ist, No. 43. Union under it, cannot make such provi- 

2 Cummings v. Missouri, 4 Wall 277 ; sion valid. Gunn v. Barry, 15 Wall. 610. 
Jefferson Branch Bank v. Skelly, 1 Black, 8 Matter of the Reciprocity Bank, 22 
436; State v. Keith, 63 N. C. 140; Jac- N. Y. 9 ; McMullen w. Hodge, 6 Texas, 
oway v. Denton, 25 Ark. 525; Union 34; Penn v. Tollison, 26 Ark. 545; Mat- 
Bank v. State, 9 Yerg. 490; Girdner v. ter of Oliver Lee & Co.'s Bank, 21 N. Y. 
Stephens, 1 Heisk. 280 ; Lawson v. Jef- 9. In the case last cited, Denio, J., says : 
fries, 47 Miss. 686, 12 Am. Rep. 342 "The [constitutional] convention was not 
Penn v. Tollison, 26 Ark. 545; Dodge obliged, like the legislative bodies, to look 
v. Woolsey, 18 How. 331 ; Pacific R. R. carefully to the preservation of vested 
Co. v. Maguire, 20 Wall. 36; Railroad rights. It was competent to deal, subject 
Co. v. McClure, 10 Wall. 511 ; White v. to ratification by the people and to the 
Hart, 13 Wall. 646; New Orleans Gas Constitution of the Federal government, 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 



63 



And the courts of the State, still more the courts of the Union, 
would be precluded from inquiring into the justice of their action, 
or questioning its validity, because of any supposed conflict with 
fundamental rules of right or of government, unless they should 
be able to show collision at some point between the instrument 
thus formed and that paramount law which constitutes, in regard 
to the subjects it covers, the fundamental rule of action through- 
out the whole United States. 1 

How far the constitution of a State shall descend into the par- 
ticulars of government, is a question of policy addressed to the 



with all private and social rights, and 
with all the existing laws and institutions 
of the State. If the convention had so 
willed, and the people had concurred, all 
former charters and grants might have 
been annihilated. When, therefore, we 
are seeking for the true construction of a 
constitutional provision, we are constantly 
to bear in mind that its authors were not 
executing a delegated authority, limited 
by other constitutional restraints, but are 
to look upon them as the founders of a 
State, intent only upon establishing such 
principles as seemed best calculated to 
produce good government and promote 
the public happiness, at the expense of 
any and all existing institutions which 
might stand in their way." 

1 All the State constitutions now con- 
tain within themselves provisions for 
their amendment. Some require the 
question of calling a convention to re- 
vise the constitution to be submitted 
to the people at stated periods ; others 
leave it to the legislature to call a con- 
vention, or to submit to the people the 
question of calling one ; while the major 
part allow the legislature to mature spe- 
cific amendments to be submitted to the 
people separately, and these become a 
part of the constitution if adopted by the 
requisite vote. 

When the late rebellion had been put 
down by the military forces of the United 
States, and the State governments which 
constituted a part of the disloyal system 
had been displaced, serious questions 
were raised as to the proper steps to be 
taken in order to restore the States to 
their harmonious relations to the Union. 
These questions, and the controversy 
over them, constituted an important part 
of the history of our country during the 



administration of President Johnson; but 
as it is the hope and trust of our people 
that the occasion for discussing such 
questions will never arise again, we do 
not occupy space with them in this work. 
It suffices for the present to say, that 
Congress claimed, insisted upon, and en- 
forced the right to prescribe the steps to 
be taken and the conditions to be ob- 
served in order to restore these States to 
their former positions in the Union, and 
the right also to determine when the pre- 
scribed conditions had been complied 
with, so as to entitle them to representa- 
tion in Congress. There is some discus- 
sion of the general subject in Texas v. 
White, 7 Wall. 700. And see Gunn v. 
Barry, 15 Wall. 610. 

When a constitution has been re- 
garded by the people of a State as valid, 
and it has never been adjudged illegal 
by the courts, a Federal circuit court will 
not question its legal adoption. Smith v. 
Good, 34 Fed. Rep. 204. 

It has been decided in some cases that 
a constitution is to have effect from the 
time of its adoption by the people, and 
not from the time of the admission of the 
State into the Union by Congress. Scott 
v. Young Men's Society's Lessee, 1 Doug. 
(Mich.) 119; Campbell u. Fields, 35 Texas, 
751. The Texas reconstruction consti- 
tution became operative before the State 
was admitted to representation in Con- 
gress. Peak v. Swindle, 68 Texas, 242, 
4 S. W. 478. An amendment to the 
Minnesota original constitution adopted 
before formal admission of the State is 
valid. Any irregularity is healed by the 
admission, and the subsequent recogni- 
tion of the validity of the amendment 
by the State. Secombe v. Kittelson, 29 
M1nn. 555, 12 N. W. 519. 



64 CONSTITUTIONAL LIMITATIONS. [Gil. III. 

convention which forms it. Certain things are to be looked for 
in all these instruments ; though even as to these there is great 
variety, not only of substance, but also in the minuteness of 
their provisions to meet particular cases. 

I. We are to expect a general framework of government to be 
designed, under which the sovereignty of the people is to be exer- 
cised by representatives chosen for the purpose, in such manner 
as the instrument provides, and with such reservations as it 
makes. 

II. Generally the qualifications for the right of suffrage will 
be declared, as well as the conditions under which it shall be 
exercised. 

III. The usual checks and balances of republican government, 
in which consists its chief excellence, will be retained. The 
most important of these are the separate departments for the 
exercise of legislative, executive, and judicial power; (a) and 
these are to be kept as distinct and separate as possible, except 
in so far as the action of one is made to constitute a restraint 
upon the action of the others, to keep them within proper bounds, 
and to prevent hasty and improvident action. Upon legislative 
action there is, first, the check of the executive, who will gener- 
ally be clothed with a qualified veto power, and who may refuse 
to execute laws deemed unconstitutional ; and, second, the 

(a) [^Authority in one department of government to interfere with another will 
always be strictly construed. Where the constitution provides for sessions of the 
legislature to be held at the State capitol, " except in case of war, insurrection or 
pestilence, when it may by proclamation of the governor assemble for the time being 
elsewhere," it does not empower the governor to adjourn the Houses after they have 
convened, even though he declares a state of insurrection to exist ; neither can he 
under his power to adjourn the legislature, in case of disagreement between the two 
Houses in regard to their adjournment, adjourn them to meet at a stated time at an- 
other place when there has been no disagreement between the two Houses. Taylor 
v. Beckham, Ky. , 49 L. R. A. 258, 56 S. VV. 177. See this case in Supreme 
Court of the United States, where the writ of error after discussion was dismissed 
on the ground that no deprivation of rights secured by the fourteenth amendment, 
without due process, was shown, nor was there any case made of a violation of the 
guaranty of a republican form of government. Taylor v. Beckham, 178 U. S. 548, 

20 Sup. Ct. Rep. 890. Dissenting opinion of Harlan, J., 20 Sup. Ct. Rep. 1009. 
Where the legislature is empowered to remove judges for cause, but is required to 
give notice and opportunity to appear, this imports that the cause shall be one per- 
sonal to the judge, and he cannot be removed merely to cut down expenses. But if 
his court is one which the legislature is authorized to ordain and establish, the legis- 
lature may abolish the court, and the judge's office and salary will thereupon cease. 
McCulley v. State, 102 Tenn. 509, 53 S. W. 134, 46 L. R. A. 567. That all the terri- 
tory of one judicial district may be distributed among other districts or annexed to 
one district, and the judge thus deprived of office, see Aikman v. Edwards, 55 Kan. 
751, 42 Pac. 366, 30 L. R. A. 149; but this cannot be done where the judge's term 
of office is fixed by the constitution. State e. Friedley, 135 Ind. 119, 34 N. E. 872, 

21 L. R. A. 634. Court will not enjoin any attempted exercise of legislative power 
by legislature. State v. Thorson, 9 S. D. 149, 68 N. W. 202, 33 L. R. A. 582.3 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 65 

check of the judiciary, who may annul unconstitutional laws, 
and punish those concerned in enforcing them. Upon judicial 
action there is the legislative check, which consists in the power 
to prescribe rules for the courts, and perhaps to restrict their 
authority; and the executive check, of refusing aid in enforcing 
any judgments which are believed to be in excess of jurisdiction. 
Upon executive action the legislature has a power of restraint, 
corresponding to that which it exercises upon judicial action; 
and the judiciary may punish executive agents for any action in 
excess of executive authority. And the legislative department 
has an important restraint upon both the executive and the 
judiciary, in the power of impeachment for illegal or oppressive 
action, or for any failure to perform official duty. The execu- 
tive, in refusing to execute a legislative enactment, will always 
do so with the peril of impeachment in view. 

IV. Local self-government having always been a part of the 
English and American systems, we shall look for its recognition 
in any such instrument. And even if not expressly recognized, 
it is still to be understood that all these instruments are framed 
with its present existence and anticipated continuance in view. 1 

V. We shall also expect a declaration of rights for the pro- 
tection of individuals and minorities. This declaration usually 
contains the following classes of provisions : 

1. Those declaratory of the general principles of republican 
government; such as, that all freemen, when they form a social 
compact, are equal, and no man, or set of men, is entitled to 
exclusive, separate public emoluments or privileges (a) from the 

1 Park Commissioners v. Common case is valuable for its historical discus- 
Council of Detroit, 28 Mich. 228 ; People sion of the principle. 
v. Albertson, 55 N. Y. 50. fJUnder the The legislature cannot fix the salaries 
constitution of Georgia it is held that of firemen employed by municipalities, 
municipalities cannot maintain the prop- although there is no limitation on such 
osition of absolute local self-government action in the constitution, since this is a 
and the State legislature may by direct matter of purely local concern. Lexing- 
enactment control the local police. Amer- ton v. Thompson, Ky. , 68 S. W. 
icus v. Perry, 114 Ga. 871, 40 S. E. 1004, 477, 57 L. R. A. 775 (May 28, 1902). A 
67 L. R. A. 280. It is held in White v. legislature may create a school district 
Barker, Iowa, , 89 N. W. 204, 57 L. and appoint its officers. Kies v. Lowery, 
R. A. 244 (Feb. 13. 1902), that the legisla- Mich. , 92 N. W. 289 (Nov. 18, 
ture could not take from the municipality 1902). For a discussion of the " Right to 
the management of a municipal water Local Self-Government," see article by 
supply system. That action to that ef- Mr. Amasa M. Eaton, 13 Harv. L. Rev. 
feet was invalid for violation of the prin- 441, 670, 638, 14 id. 20, 116J 
ciple of municipal self-government. This 

(a) fJThe provision that no corporation shall be granted any special or exclusive 
privilege or immunity is not violated by an act which allows trustees of an estate to 
charge the estate any reasonable sum which they may have paid " to a company," 
authorized by law so to do, for becoming surety upon their bonds. Be Clark, 195 Pa. 

6 



66 CONSTITUTIONAL LIMITATIONS. [CH. III. 

community but in consideration of public services ; that absolute, 
arbitrary power over the lives, liberty, and property of freemen 
exists nowhere in a republic, not even in the largest majority; 
that all power is inherent in the people, and all free govern- 
ments are founded on their authority, and instituted for their 
peace, safety, happiness, security, and the protection of prop- 
erty; that for the advancement of these ends they have at all 
times an inalienable and indefeasible right to alter, reform, or 
abolish their government in such manner as they may think 
proper; that all elections shall be free and equal ; that no power 
of suspending the laws shall be exercised except by the legis- 
lature or its authority; that standing armies are not to be 
maintained in time of peace ; that representation shall be in 
proportion to population ; that the people shall have the right 
freely to assemble to consult of the common good, to instruct 
their representatives, and petition for redress of grievances; and 
the like. 

2. Those declaratory of the fundamental rights of the citizen: 
as that all men are by nature free and independent, and have 
certain inalienable rights, among which are those of enjoying 
and defending life and liberty, acquiring, possessing, and pro- 
tecting property, (a) and pursuing and obtaining safety and 

520, 46 Atl. 127, 48 L. R. A. 587. But the privilege of taking oysters in public waters 
cannot be restricted to taxpayers. Gustafson v. State, 40 Tex. Cr. 67, 45 S W. 717, 
48 S. W. 518, 43 L. R. A 615. But labor unions may be granted right to register 
their trade-marks and labels and have them protected from infringement. Schmalz 
v. Woolley, 57 N. J. Eq. 303, 41 Atl. 939, 43 L. R. A. 86, 73 Am. St. 637; Perkins v. 
Heert, 158 N. Y. 306, 53 N. E. 18, 43 L. R. A. 858, 70 Am. St. 483. Sale of ferry 
franchise to highest bidder is not a grant of special or exclusive privilege, even 
though the franchise be exclusive, all persons being free to bid. Patterson v. Woll- 
man, 5 N. D. 608, 67 N. VV. 1040, 33 L. R. A. 536; Nixon v. Reid, 8 S. D. 507, 

67 N. W. 67, 32 L. R. A. 315. Law making an exception from civil service regula- 
tions in case of veteran soldiers, and compelling their appointment to vacancies 
upon their sworn statements of qualification, is void. Brown r. Russell, 166 Mass. 14, 
43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. 357. Statute authorizing the levy of an 
arbitrary tax upon ordinary and lawful occupations is void. State v. Conlon, 65 
Conn. 478, 33 Atl. 519. 31 L R. A. 55, 48 Am. St. 227. Statute granting to trade- 
unions copyright in their trade-marks is valid. State v. Bishop, 128 Mo. 373, 
31 S. W. 9, 29 L. R. A. 200, 49 Am. St. 569, and see note hereto in L. R. A. Statute 
specifying number of deputies to be allowed county officers in certain counties, 
but leaving it to discretion of county court in other counties is void. Weaver v. 
Davidson County, 104 Tenn. 315, 59 S. W. 1105.] 

(a) An act which makes it unlawful to hire any laborer to work more than eight 
hours per day in any mine or smelter is void. Re Morgan, 26 Colo. 415, 58 Pac. 
1071, 47 L. R. A. 52, 77 Am. St. 269. But a State may require that its contractors 
and builders shall employ their laborers only eight hours per day. Re Dalton, 61 
Kan. 257, 59 Pac. 336, 47 L. R. A. 380. The right to liberty does not give to insur- 
ance corporations the right to contract among themselves to maintain stipulated 
rates. State v. Firemen's Fund Ins Co., 152 Mo. 1, 52 S. W. 595, 45 L. R. A. 363. 
Right to engage in ticket brokerage cannot be restricted to persons designated by 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 67 

happiness; that the right to property is before and higher than 
any constitutional sanction ; that the free exercise and enjoyment 
of religious profession and worship, without discrimination or 
preference, shall forever be allowed; 1 that every man may freely 
speak, write, and publish his sentiments on all subjects, being 
responsible for the abuse of that right; that every man may bear 
arms for the defence of himself and of the State; that the right 
of the people to be secure in their persons, houses, papers, and 
effects against unreasonable searches and seizures shall not be 
violated, nor shall soldiers be quartered upon citizens in time of 
peace; and the like. 

3. Those declaratory of the principles which ensure to the 
citizen an impartial trial, and protect him in his life, liberty, 
and property against the arbitrary action of those in authority: 
as that no bill of attainder or ex post facto law shall be passed ; 
that the right to trial by jury shall be preserved ; that excessive 
bail shall not be required, nor excessive punishments inflicted; 
that no person shall be subject to be twice put in jeopardy for 
the same offence, nor be compelled in any criminal case to be 
a witness against himself, (a) nor be deprived of life, liberty, 
or property without due process of law; that private property 
shall not be taken for public use without compensation; and the 
like. (6) 

1 Hale v. Everett, 63 N. H. 9; Board of Education v. Minor, 23 Ohio St. 211. 

transportation companies. People v. Warden, &c., 157 N. T. 116, 51 N. E. 1006, 43 
L. R. A. 264, 68 Am. St. 763. But see, in this connection, cases cited in note 3, page 
886, post. No man can be held to answer for the act of another over whom he has no 
control or authority, Durkin v. Kingston Coal Co., 171 Pa. 193, 33 Atl. 237,29 L. R. 
A. 808, 50 Am. St. 801, declaring invalid an act making the proprietor of a mine re- 
sponsible for the acts and neglects of a licensed mine foreman whom he was by 
statute compelled to employ. Right of employer to discharge employees joining or 
refusing to withdraw from labor unions cannot be taken from him. State v. Julow, 
129 Mo. 163, 31 S. W. 781, 29 L. R. A. 257, 50 Am. St. 443, a statute fixing a license 
fee of $1,000 for persons engaged in hiring laborers in one State to te employed in 
another is invalid. State v. Moore, 113 N. C. 697, 18 S. E. 342.] 

(a) fJSee latter part of note 1, page 442.] 

(6) fJTlie provision that courts of justice shall be open to every person and that 
right and justice shall be administered without denial, sale, or delay is violated by a 
statute which allows an attorney's fee to successful lien claimants but not to success- 
ful defendants. Davidson v. Jennings, 27 Colo. 187, 60 Pac. 354, 48 L. R. A. 340, 
83 Am. St. 49. Such fees are allowed in Florida. Dell v. Marvin, 41 Fla. 221,26 
So. 188, 45 L. R. A. 201, 79 Am. St. 171. Further proceedings in an action may be 
stayed until costs of an appeal are paid. Knee v. Baltimore City Pass. Ry. Co., 87 
Md. 623, 40 Atl. 890, 42 L. R. A. 363. A person is not deprived of property or par- 
ticular services without compensation by a statute which compels him to appear 
before the court and testify in criminal cases, and deprives him of all right to fees 
therefor or makes such right contingent upon conviction of accused. State v. 
Henley, 98 Tenn. 665, 41 S. W. 352, 39 L. R. A. 126. And an expert witness can 
not claim higher fees than other witnesses, nor can he refuse to testify until such 



68 CONSTITUTIONAL LIMITATIONS. [CH. III. 

Other clauses are sometimes added declaratory of the princi- 
ples of morality and virtue; and it is also sometimes expressly 
declared what indeed is implied without the declaration that 
everything in the declaration of rights contained is excepted out 
of the general powers of government, and all laws contrary 
thereto shall be void. 

Many other things are commonly found in these charters of 
government; 1 but since, while they continue in force, they are 
to remain absolute and unchangeable rules of action and deci- 
sion, it is obvious that they should not be made to embrace 
within their iron grasp those subjects in regard to which the 
policy or interest of the State or of its people may vary from 
time to time, and which are therefore more properly left to the 
control of the legislature, which can more easily and speedily 
make the required changes. 

In considering State constitutions we must not commit the 
mistake of supposing that, because individual rights are guarded 
and protected by them, they must also be considered as owing 
their origin to them. These instruments measure the powers of 
the rulers, but they do not measure the rights of the governed. 
" What is a constitution, and what are its objects? It is easier 
to tell what it is not than what it is. It is not the beginning of 
a community, nor the origin of private rights ; it is not the 
fountain of law, nor the incipient state of government; it is not 
the cause, but consequence, of personal and political freedom; 
it grants no rights to the people, but is the creature of their 
power, the instrument of their convenience. Designed for their 
protection in the enjoyment of the rights and powers which they 
possessed before the constitution was made, it is but the frame- 

1 " This, then, is the office of a written agents by the people ; to ascertain, limit, 

([free] constitution: to delegate to vari- and define the extent of the authority 

ous public functionaries such of the thus delegated ; and to reserve to the 

powers of government as the people do people their sovereignty over all things 

not intend to exercise for themselves ; to not expressly committed to their repre- 

classify these powers, according to their sentatives." E. P. Hurlbut in Human 

nature, and to commit them to separate Rights and their Political Guaranties, 
agents ; to provide for the choice of these 

fees are secured to him. Dixon v. People, 168 111. 179, 48 N. E. 108, 39 L. R. A. 
116 ; upon right of State to require services of witnesses without compensation, see 
note to Dixon v. People, above, in L. R. A. Moderate court fees may be exacted of 
parties to legal proceedings. Northern Counties Invt. Trust v. Sears, 30 Or. 388, 41 
Pac. 931, 35 L. R. A. 188. Repeal of statute giving right of action against county 
for injury resulting from defective bridge does not violate a provision that every 
man shall have remedy by due course of law for all injuries done him. Templeton 
v. Linn. Co., 22 Oreg. 313, 29 Pac. 795, 15 L. R. A. 730. Proceedings in a second 
action in ejectment may be stayed until costs in the first are paid. Shear v. Box, 92 
Ala. 596, 8 So. 792, 11 L. R. A. 620, and note.] 



CH. III.] FORMATION AND AMENDMENT OF CONSTITUTIONS. 



69 



work of the political government, and necessarily based upon 
the pre-existing condition of laws, rights, habits, and modes of 
thought. There is nothing primitive in it: it is all derived 
from a known source. Tt presupposes an organized society, law, 
order, property, personal freedom, a love of political liberty, and 
enough of cultivated intelligence to know how to guard it against 
the encroachments of tyranny. A written constitution is in 
every instance a limitation upon the powers of government in 
the hands of agents; for there never was a written republican 
constitution which delegated to functionaries all the latent 
powers which lie dormant in every nation, and are boundless in 
extent and incapable of definition." J 



1 Hamilton v. St. Louis County Court, 
15 Mo. 13, per Bates, arguendo. And see 
Matter of Oliver Lee & Co.'s Bank, 21 
N. Y. 9; Lee v. State, 26 Ark. 265-6. 
" Written constitutions sanctify and con- 
firm great principles, but the latter are 
prior in existence to the former." 2 
Webster's Works, 392. See also 1 Bl. 
Com. 124 ; 2 Story, Life and Letters, 278 ; 
Sidney on Government, c. 3, sees. 27 and 
33. " If this charter of State government 
which we call a constitution were all 
there was of constitutional command ; if 
the usages, the customs, the maxims that 
have sprung from the habits of life, 
modes of thought, methods of trying 
facts by the neighborhood, and mutual 
responsibility in neighborhood interests ; 
the precepts that have come to us from 
the revolutions which overturned tyran- 
nies ; the sentiments of manly independ- 
ence and self-control which impelled oar 



ancestors to summon the local community 
to redress local evils, instead of relying 
upon king or legislature at a distance to 
do so, if a recognition of all these were 
to be stricken from the body of our con- 
stitutional law, a lifeless skeleton might 
remain, but the living spirit; that which 
gives it force and attraction, which makes 
it valuable and draws to it the affections 
of the people ; that which distinguishes 
it from the numberless constitutions, so 
called, which in Europe have been set up 
and thrown down within the last hundred 
years, many of which, in their expres- 
sions, seemed equally fair and to possess 
equal promise with ours, and have only 
been wanting in the support and vitality 
which these alone can give, this living 
and breathing spirit which supplies the 
interpretation of the words of the written 
charter would be utterly lost and gone." 
People v. Hurlbut, 24 Mich. 44, 107. 



70 CONSTITUTIONAL LIMITATIONS. [CH. IV. 



CHAPTER IV. 

OF THE CONSTRUCTION OP STATE CONSTITUTIONS. 

THE deficiencies of human language are such that, if written 
instruments were always prepared carefully by persons skilled in 
the use of words, we should still expect to find their meaning 
often drawn in question, or at least to meet with difficulties in 
their practical application. But when draughtsmen are careless 
or incompetent, these difficulties are greatly increased ; and they 
multiply rapidly when the instruments are to be applied, not only 
to the subjects directly within the contemplation of those who 
framed them, but also to a great variety of new circumstances 
which could not have been anticipated, but which must never- 
theless be governed by the general rules which the instruments 
establish. Moreover, the different points of view from which dif- 
ferent individuals regard these instruments incline them to differ- 
ent views of the instruments themselves. All these circumstances 
tend to give to the subjects of interpretation and construction 
great prominence in the practical administration of the law, and 
to suggest questions which often are of no little difficulty. 

Interpretation differs from construction in that the former is 
the art of finding out the true sense of any form of words ; that 
is, the sense which their author intended to convey ; and of 
enabling others to derive from them the same idea which the 
author intended to convey. Construction, on the other hand, is 
the drawing of conclusions, respecting subjects that lie beyond 
the direct expressions of the text, from elements known from and 
given in the text ; conclusions which are in the spirit, though not 
within the letter of the text. Interpretation only takes place if the 
text conveys some meaning or other. But construction is resorted 
to when, in comparing two different writings of the same indi- 
vidual, or two different enactments by the same legislative body, 
there is found contradiction where there was evidently no inten- 
tion of such contradiction one of another, or where it happens 
that part of a writing or declaration contradicts the rest. When 
this is the case, and the nature of the document or declaration, 
or whatever else it may be, is such as not to allow us to consider 
the whole as being invalidated by a partial or other contradiction, 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 71 

then resort must be had to construction ; so, too, if required to act 
in cases which have not been foreseen by the framers of those 
rules, by which we are nevertheless obliged, for some binding 
reason, faithfully to regulate as well as we can our action respect- 
ing the unforeseen case. 1 In common use, however, the word 
construction is generally employed in the law in a sense embra- 
cing all that is properly covered by both when each is used in a 
sense strictly and technically correct ; and we shall so employ it 
in the present chapter. 

From the earliest periods in the history of written law, rules of 
construction, sometimes based upon sound reason, and seeking 
the real intent of the instrument, and at other times altogether 
arbitrary or fanciful, have been laid down by those who have 
assumed to instruct in the law, or who have been called upon to 
administer it, by the aid of which the meaning of the instrument 
was to be resolved. Some of these rules have been applied to 
particular classes of instruments only ; others are more general 
in their application, and, so far as they are sound, may be made 
use of in any case where the meaning of a writing is in dispute. 
To such of these as seem important in constitutional law we shall 
refer, and illustrate them by references to reported cases, in which 
they have been applied. 

A few preliminary words may not be out of place, upon the 
questions, who are to apply these rules ; what person, body, or 
department is to enforce the construction ; and how far a deter- 
mination, when once made, is to be binding upon other persons, 
bodies, or departments. 

We have already seen that we are to expect in every constitu- 
tion an apportionment of the powers of government. We shall 
also find certain duties imposed upon the several departments, as 
well as upon specified officers in each, and we shall likewise dis- 
cover that the constitution has sought to hedge about their 
action in various ways, with a view to the protection of individual 
rights, and the proper separation of duties. And wherever any 
one is called upon to perform any constitutional duty, or to do 
any act in respect to which it can be supposed that the constitu- 
tion has spoken, it is obvious that a question of construction may 
at once arise, upon which some one must decide before the duty 
is performed or the act done. From the very nature of the case, 

1 Lieber, Legal and Political Hermen- convey ideas." " Construction, in practice, 

eutics. See Smith on Stat. and Const, determining the meaning and application 

Construction, 600. Bouvier defines the as to the case in question of the provi- 

two terms succinctly as follows : " Inter- sions of a constitution, statute, will, or 

pr?tation, the discovery and representation other instrument, or of an oral agree- 

of the true meaning of any signs used to ment." Law Diet. 



72 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

this decision must commonly be made by the person, body, or 
department upon whom the duty is imposed, or from whom the 
act is required. 

Let us suppose that the constitution requires of the legislature, 
that, in establishing municipal corporations, it shall restrict 
their powers of taxation; and a city charter is proposed which 
confines the right of taxation to the raising of money for certain 
specified purposes, but in regard to those purposes leaves 'it 
unlimited; or which allows to the municipality unlimited choice 
of purposes, but restricts the rate; or which permits persons to 
be taxed indefinitely, but limits the taxation of property : in 
either of these cases the question at once arises, whether the 
limitation in the charter is such a restriction as the constitution 
intends. Let us suppose, again, that a board of supervisors is, 
by the Constitution, authorized to borrow money upon the credit 
of the county for any county purpose, and that it is asked to 
issue bonds in order to purchase stock in some railway company 
which proposes to construct a road across the county ; and the 
proposition is met with the query, Is this a county purpose, and 
can the issue of bonds be regarded as a borrowing of money, 
within the meaning of the people as expressed in the consti- 
tution? And once again : let us suppose that the governor is 
empowered to convene the legislature on extraordinary occa- 
sions, and he is requested to do so in order to provide for a 
class of private claims whose holders are urgent; can this with 
any propriety be deemed an extraordinary occasion? 

In these and the like cases our constitutions have provided no 
tribunal for the specific duty of solving in advance the questions 
which arise. In a few of the States, indeed, the legislative 
department has been empowered by the constitution to call upon 
the courts for their opinion upon the constitutional validity of a 
proposed law, in order that, if it be adjudged without warrant, 
the legislature may abstain from enacting it. 1 But those pro- 

1 By the constitutions of Maine, New an existing act which the legislature may 

Hampshire, and Massachusetts, the judges amend. Opinion of Justices, 148 Mass, 

of the Supreme Court are required, when 623, 21 N. E. Rep. 439. In Florida the 

called upon by the governor, council, or governor may require an opinion on any 

either house of the legislature, to give question affecting his executive powers 

their opinions " upon important questions and duties. A duty with reference to a 

of law, and upon solemn occasions." In bill before it becomes a law, is not an 

Rhode Island the governor or either house executive duty, and as to it the judges 

of the general assembly may call for the cannot advise. Opinion of Justices, 23 

opinions of the judges of the Supreme Fla. 297, 6 So. 925. QSo in South Dako- 

Court upon any question of law. In ta. Re Constitutional Provision, 3 S. D. 

Massachusetts the justices will not give 548, 54 N. W. 650, 19 L. R. A. 575.] 

an opinion on the proper construction of lu Missouri, previous to the constitution 



CH. IV.] 



CONSTRUCTION OF STATE CONSTITUTIONS. 



73 



visions are not often to be met with, and judicial decisions, 
especially upon delicate and difficult questions of constitutional 
law, can seldom be entirely satisfactory when made, as they 
commonly will be under such calls, without the benefit of argu- 
ment at the bar, and of that light upon the questions involved 
which might be afforded by counsel learned in the law, and 
interested in giving them a thorough investigation. 

It follows, therefore, that every department of the government 
and every official of every department may at any time, when a 
duty is to be performed, be required to pass upon a question of 
constitutional construction. 1 Sometimes the case will be such 
that the decision when made must, from the nature of things, be 
conclusive and subject to no appeal or review, however erro- 
neous it may be in the opinion of other departments or other 
officers; but in other cases the same question may be required 
to be passed upon again before the duty is completely performed. 



of 1875, the judges were required to give 
their opinions " upon important questions 
of constitutional law, and upon solemn 
occasions ; " and the Supreme Court held 
that while the governor determined for 
himself, whether the occasion was such 
as to authorize him to call on the judges 
for their opinion, they must decide for 
themselves whether the occasion was 
such as to warrant the governor in mak- 
ing the call. Opinions of Judges, 49 Mo. 
216. By a constitutional amendment of 
1885, the Colorado Supreme Court is re- 
quired to give its opinion upon impor- 
tant questions upon solemn occasions to 
the governor or either house of the legis- 
lature. The intention, it is held, is not 
"to authorize an ex parte adjudication 
of individual or corporate rights," nor 
to exact " a wholesale exposition of all 
constitutional questions relating to a 
given subject, in anticipation of the pos- 
sible introduction or passage of meas- 
ures bearing upon particular branches 
of such subject." It appearing that the 
question was covered by pending litiga- 
tion, the court refused to answer. In re 
Irrigation Resolution, 9 Col. 620, 21 
Pac. 470. Nor should it give an opinion 
on provisions which do not affect a pend- 
ing act. In re Irrigation Resolution,; supra. 
Questions must affect purely public 
rights. In re Senate Resolution, No. 
65, 12 Col. 466, 21 Pac. 478 ; [Re House 
Bill, No. 99, 26 Col. 140, 56 Pac. 181; 



Re Senate Bill, No. 27, 28 Col. 359, 65 
Pac. 50.] 

In Vermont, by statute the governor 
may require an opinion on questions con- 
nected with the discharge of his duties; 
and in Kentucky an opinion has been 
given without requirement of law on the 
power of the governor to fill a vacancy on 
the Supreme Bench. Opinion of Judges, 
79 Ky. 621. 

1 " It is argued that the legislature 
cannot give a construction to the consti- 
tution relative to private rights secured 
by it. It is true that the legislature, in 
consequence of their construction of the 
constitution, cannot make laws repugnant 
to it. But every department of govern- 
ment, invested with certain constitutional 
powers, must, in the first instance, but 
not exclusively, be the judge of its pow- 
ers, or it could not act." Parsons, Ch. J., 
in Kendall v. Inhabitants of Kingston, 5 
Mass. 524, 533. The decision of a gov- 
ernor, having jurisdiction to decide in 
the first instance whether tax exemp- 
tion is constitutional, must be obeyed 
by inferior executive officers. State v. 
Buchanan, 24 W. Va. 362. But a patent 
commissioner may not refuse to perform 
a ministerial act on the ground that the 
statute requiring it is unconstitutional. 
United States v. Marble, 3 Mackey, 32. 
Notwithstanding a void proviso as to an 
officer's salary, it is his duty to give the 
act effect. State v. Kelsey, 44 N. J. L. 1. 



74 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

The first of these classes is where, by the constitution, a par- 
ticular question is plainly addressed to the discretion or judg- 
ment of some one department or officer, so that the interference 
of any other department or officer, with a view to the substitution 
of its own discretion or judgment in the place of that to which 
the constitution has confided the decision, would be impertinent 
and intrusive, (a) Under every constitution, cases of this de- 
scription are to be met with; and, though it will sometimes be 
found difficult to classify them, there can be no doubt, when the 
case is properly determined to be one of this character, that the 
rule must prevail which makes the decision final. 

We will suppose, again, that the constitution empowers the 
executive to convene the legislature on extraordinary occasions, 
and does not in terms authorize the intervention of any one else 
in determining what is and what is not such an occasion in the 
constitutional sense; it is obvious that the question is addressed 
exclusively to the executive judgment, and neither the legislative 
nor the judicial department can intervene to compel action, if 
the executive decide against it, or to enjoin action if, in his 
opinion, the proper occasion has arisen. 1 And again, if, by the 

1 Whiteman v. Railroad Co., 2 Hair, second proclamation, revoking the first 

(Del.) 514, 33 Am. Dec. 411 ; In re State Held, that the power of convening the 

Census, 9 Col. 642, 21 Pac. Rep. 477; legislature being a discretionary power, 

fJFarrelly v. Cole, 60 Kan. 356, 56 Pac. it might be recalled before the meeting 

492, 44 L. R. A. 464.] In exercising his took place. 

power to call out the militia in certain It is undoubted that, when a case is 

exigencies, the President is the exclusive within the legislative discretion, the courts 

and final judge when the exigency has cannot interfere with its exercise. State 

arisen. Martin v. Mott, 12 Wheat. 19. v. Hitchcock, 1 Kan. 178; State v. Boone 

In People v. Parker, 3 Neb. 409, 19 Am. County Court, 50 Mo 317; Patterson v. 

Rep. 634, it appeared that an officer, Barlow, 60 Pa. St. 64; QKimball v. 

assuming to act as governor in the ab- Grantsville City, 19 Utah, 368, 57 Pac. 1, 

sence of the governor from the State, 45 L. R. A 628,] and see cases post, 181. 

had issued a proclamation convening the The statement of legislative reasons in 

legislature in extraordinary session. The the preamble of an act will not affect its 

governor returned previous to the time validity. Lothrop v. Steadman, 42 Conn, 

named for the meeting, and issued a 583. 

(a) [[Where the constitution empowers the legislature to determine an election 
contest for offices of governor and lieutenant-governor, the decision of the legislature 
in any such contest is not subject to review in the courts. Taylor v. Beckham, 
Ky. , 49 L. R. A. 258, 56 S. W. 177. See this case in Supreme Court of the 
United States, 178 U. S. 548, 20 Sup. Ct. Rep. 890; Dissenting opinion of ffarlan, J., 
20 Sup. Ct. Rep. 1009. Courts have jurisdiction to review apportionment statutes 
for abuses of discretion, amounting to violations of the constitution. Carter v. 
Rice, 135 N. Y. 473, 31 N. E. 921 ; State v. Cunningham. 83 Wis. 90, 51 N. W. 724, 
35 Am. St. 27; Giddings v. Secretary of State, 93 Mich. 1, 52 N. W. 914. In the 
last-mentioned case, the question was expressly determined to be a judicial one. 
But see Fletcher v. Tuttle, 151 111. 41, 37 N E. 683, 42 Am. St. 220, in which case it 
was held that a bill, which raised the question of the validity of an apportionment 
act, filed by an elector for the enforcement of his right to the elective franchise, 
would not lie since the right involved was a purely political one.] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 75 

constitution, laws are to take effect at a specified time after 
their passage, unless the legislature for urgent reasons shall 
otherwise order, we must perceive at once that the legislature 
alone is competent to pass upon the urgency of the alleged 
reasons. 1 And to take a judicial instance: If a court is required 
to give an accused person a trial at the first term after indict- 
ment, unless good cause be shown for continuance, it is obvious 
that the question of good cause is one for the court alone to pass 
upon, and that its judgment when exercised is, and must be from 
the nature of the case, final. And when in these or any similar 
case the decision is once made, other departments or other 
officers, whatever may have been their own opinions, must 
assume the decision to be correct, and are not at liberty to raise 
any question concerning it, unless some duty is devolved upon 
them which presents the same question anew. 

But there are cases in which the question of construction is 
equally addressed to two or more departments of the government, 
and it then becomes important to know whether the decision by 
one is binding upon the others, or whether each is to act upon 
its own judgment. Let us suppose once more that the governor, 
being empowered by the constitution to convene the legislature 
upon extraordinary occasions, has regarded a particular event 
as being such an occasion, and has issued his proclamation 
calling them together with a view to the enactment of some 

1 See post, p. 224. In Gillinwater v law makes no provision for the construc- 
Mississippi & Atlantic Railroad Co., 13 ti< n of canals and turnpike roads, and yet 
111. 1, it was urged that a certain restric- they are as much internal improvements 
tion imposed upon railroad corporations as railroads, and we might as well be 
by the general railroad law was a viola- asked to extend what we might consider 
tion of the provision of the constitution the liberal provisions of this law to them, 
which enjoins it upon the legislature " to because they are embraced in the consti- 
encourage internal improvements by pass- tutional provision, as to ask us to disre- 
ing liberal general laws of incorporation gard such provisions of it as we might 
for that purpose " The court say of this regard as illiberal. The argument pro- 
provision: "This is a constitutional com- ceeds upon the idea that we should con- 
mand to the legislature, as obligatory on sider that as done which ought to be done ; 
it as any other of the provisions of that but that principle has no application here, 
instrument; Imt it is one which cannot Like laws upon other subjects within 
be enforced by the courts of justice. It legislative jurisdiction, it is for the courts 
addresses itself to the legislature alone, to say what the law is, not what it should 
and it is not for us to say whether it has be." It is clear that courts cannot inter- 
obeyed the behest in its true spirit, fere with matters of legislative discretion. 
Whether the provisions of this law are Maloy v. Marietta, 11 Ohio St. 636. As 
liberal, and tend to encourage internal to self-executing provisions in general, 
improvements, is matter of opinion, about see post^ p. 119. [The courts have au- 
which men mny differ; and as we have thority to decide which if either of two 
no authority to revise legislative action contesting bodies is the State senate, 
on the subject, it would not become us to Attorney-General v. Rogers, 56 N. J. L. 
express our views in relation to it. The 480, 29 Atl. 173, 23 L. R. A. 354.] 



76 CONSTITUTIONAL LIMITATIONS. [cH. IV. 

particular legislation which the event seems to call for, and 
which he specifies in his proclamation. Now, the legislature 
are to enact laws upon their own view of necessity and expedi- 
ency ; and they will refuse to pass t-he desired statute if they 
regard it as unwise or unimportant. But in so doing they indi- 
rectly review the governor's decision, especially if, in refusing 
to pass the law, they do so on the ground that the specific event 
was not one calling for action on their part. In such a case it 
is clear that, while the decision of the governqr is final so far 
as to require the legislature to meet, it is not final in any sense 
that would bind the legislative department to accept and act 
upon it when they enter upon the performance of their duty in 
the making of laws. 1 

So also there are cases where, after the two houses of the 
legislature have passed upon the question, their decision is in 
a certain sense subject to review by the governor. If a bill is 
introduced the constitutionality of which is disputed, the passage 
of the bill by the two houses must be regarded as the expression 
of their judgment that, if approved, it will be a valid law. But 
if the constitution confers upon the governor a veto power, the 
same question of constitutional authority will be brought by 
the bill before him, since it is manifestly his duty to withhold 
approval from any bill which, in his opinion, the legislature 
ought not for any reason to pass. And what reason so forcible 
as that the constitution confers upon them no authority to enact 
it? In all these and the like cases, each department must act 
upon its own judgment, and cannot be required to do that which 
it regards as a violation of the constitution, on the ground solely 
that another department which, in the course of the discharge 
of its own duty, was called upon first to act, has reached the 
conclusion that it will not be violated by the proposed action. 

But setting aside now those cases to which we have referred, 
where from the nature of things, and perhaps from explicit 
terms of the constitution, the judgment of the department or 
officer acting must be final, we shall find the general rule to be, 
that whenever action is taken which may become the subject of 
a suit or proceeding in court, any question of constitutional 
power or right that was involved in such action will be open 
for consideration in such suit or proceeding, and that as the 
courts must finally settle the particular controversy, so also will 
they finally determine the question of constitutional law. 

For the constitution of the State is higher in authority than 
any law, direction, or order made by any body or any officer 

1 See Opinions of Judges, 49 Mo. 216. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 



assuming to act under it, since such body or officer must exer- 
cise a delegated authority, and one that must necessarily be 
subservient to the instrument by which the delegation is made. 
In any case of conflict the fundamental law must govern, and the 
act in conflict with it must be treated as of no legal validity. 
But no mode has yet been devised by which thes"e questions of 
conflict are to be discussed and settled as abstract questions, 
and their determination is necessary or practicable only when 
public or private rights would be affected thereby. They then 
become the subject of legal controversy ; and legal controversies 
must be settled by the courts. 1 The courts have thus devolved 
upon them the duty to pass upon the constitutional validity, 
sometimes of legislative, and sometimes of executive acts. And 
as judicial tribunals have authority, not only to judge, but also 
to enforce their judgments, the result of a decision against the 
constitutionality of a legislative or executive act will be to 
render it invalid through the enforcement of the paramount law 
in the controversy which has raised the question. 2 



1 Governor v. Porter, 5 Humph. 165. 
The legislature cannot by statute define 
the words of the constitution for the 
courts. Westinghausen v. People, 44 
Mich. 265; Powell v. State, 17 Tex. App. 
845. Compare People v. Supervisors of 
La Salle, 100 111. 495. And see post, 136, 
note. 

2 " When laws conflict in actual cases, 
they [the courts] must decide which is 
the superior law, and which must yield ; 
and as we have seen that, according to 
our principles, every officer remains an- 
swerable for what he officially does, a 
citizen, believing that the law he enforces 
is incompatible with the superior law, the 
constitution, simply sues the officer before 
the proper court as having unlawfully 
aggrieved him in the particular case. 
The court, bound to do justice to every 
one, is bound also to decide this case as 
a simple case of conflicting laws. The 
court does not decide directly upon the 
doings of the legislature. It simply de- 
cides for the case in hand, whether there 
actually are conflicting laws, and, if so, 
which is the higher law that demands 
obedience, when both may not be obeyed 
at the same time. As, however, this de- 
cision becomes the leading decision for all 
future cases of the same import, until, in- 
deed, proper and legitimate authority 
should reverse it, the question of consti- 



tutionality is virtually decided, and it is 
decided in a natural, easy, legitimate and 
safe manner, according to the principle of 
the supremacy of the law and the depend- 
ence of justice. It is one of the most in- 
teresting and important evolutions of the 
government of law, and one of the great- 
est protections of the citizen. It may well 
be called a very jewel of Anglican liberty 
and one of the best fruits of our political 
civilization." Lieber, Civil Liberty and 
Self-Government. 

" Whenever a law which the judge 
holds to be unconstitutional is argued in 
a tribunal of the United States, he may re- 
fuse to admit it as a rule ; this power is 
the only one which is peculiar to the 
American magistrate, but it gives rise to 
immense political influence. Few laws 
can escape the searching analysis ; for 
there are few which are not prejudicial 
to some private interest or other, and 
none which may not be brought before a 
court of justice by the choice of parties, 
or by the necessity of the case. But 
from the time that a judge has refused 
to apply any given law in a case, that law 
loses a portion of its moral sanction. The 
persons to whose interest it is prejudicial 
learn that means exist for evading its 
authority ; and similar suits are multi- 
plied until it becomes powerless. One 
of two alternatives must then be resorted 



78 



CONSTITUTIONAL LIMITATIONS. 



[CH. IV. 



The same conclusion is reached by stating in consecutive 
order a few familiar maxims of the law. The administration of 
public justice is referred to the courts. To perform this duty, 
the first requisite is to ascertain the facts, and the next to 
determine the law applicable to such facts. The constitution is 
the fundamental law of the State, in opposition to which any 
other law, or any direction or order, must be inoperative and 
void. If, therefore, such other law, direction, or order seems 
to be applicable to the facts, but on comparison with the funda- 
mental law the latter is found to be in conflict with it, the 
court, in declaring what the law of the case is, must necessarily 
determine its invalidity, and thereby in effect annul it. 1 The 
right and the power of the courts to do this are so plain, and 
the duty is so generally we may almost say universally con- 
ceded, that we should not be justified in wearying the patience 
of the reader in quoting from the very numerous authorities 
upon the subject. 2 



to, the people must alter the constitu- 
tion, or the legislature must repeal the 
law." De Tocqueville, Democracy in 
America, c. 6. 

1 " It is idle to say that the authority 
of each branch of the government is de- 
fined and limited by the constitution, if 
there be not an independent power able 
and willing to enforce the limitations. 
Experience proves that the constitution 
is thoughtlessly but habitually violated ; 
and the sacrifice of individual rights is 
too remotely connected with the objects 
and contests of the masses to attract their 
attention. From its very position it is 
apparent that the conservative power is 
lodged in the judiciary, which, in the ex- 
ercise of its undoubted rights, is bound 
to meet any emergency ; else causes would 
be decided, not only by the legislature, 
but sometimes without hearing or evi- 
dence." Per Gibson, Ch. J., in De Chas- 
tellux v. Fairchild, 15 Pa. St. 18. 

" Nor will this conclusion, to use the 
language of one of our most eminent 
jurists and statesmen, by any means sup- 
pose a superiority of the judicial to the 
legislative power. It will only be sup- 
posing that the power of the people is 
superior to both ; and that where the will 
of the legislature, declared in its statutes, 
stands in opposition to that declared by 
the people in the constitution, the judges 
ought to be governed by the latter rather 
than the former. They ought to regulate 



their decisions by the fundamental laws 
rather than by those which are not fun- 
damental. Neither would we, in doing 
this, be understood as impugning the 
honest intentions, or sacred regard to jus- 
tice, which we most cheerfully accord to 
the legislature. But to be above error 
is to possess an entire attribute of the 
Deity ; and to spurn its correction is 
to reduce to the same degraded level 
the most noble and the meanest of his 
works." Bates v. Kimball, 2 Chip. 77. 
See Bailey v. Gentry, 1 Mo. 164, 13 Am. 
Dec. 484. 

" Without the limitations and restraints 
usually found in written constitutions, the 
government could have no elements of 
permanence and durability ; and the dis- 
tribution of its powers, and the vesting 
their exercise in separate departments, 
would be an idle ceremonv." Brown, J., 
in People v. Draper, 15 N. Y. 5M2, 558. 

2 1 Kent, 500-507 ; Marbury v. Madi- 
son, 1 Cranch, 137; see post, p. 227-229; 
Webster on the Independence of the 
Judiciary, Works, Vol. III. p. 29. In 
this speech, Mr. Webster lias forcibly 
set forth the necessity of leaving with 
the courts the power to enforce consti- 
tutional restrictions. "It cannot be de- 
nied," says he, " that one great object 
of written constitutions is, to keep the 
departments of government as distinct 
as possible ; and for this purpose to im- 
pose restraints designed to have that 



CH. IV.] 



CONSTRUCTION OF STATE CONSTITUTIONS. 



79 



Conclusiveness of Judicial Decisions. 

But a question which has arisen and been passed upon in one 
case may arise again in another, or it may present itself under 
different circumstances for the decision of some other department 
or officer of the government. It therefore becomes of the highest 
importance to know whether a principle once authoritatively de- 
clared is to be regarded as conclusively settled for the guidance, 
not only of the court declaring it, but of all courts and all depart- 
ments of the government; or whether, on the other hand, the 
decision settles the particular controversy only, so that a different 
decision may be possible, or, considering the diversity of human 
judgments, even probable, whenever in any new controversy 
other tribunals may be required to examine and decide upon the 
same question. 

In some cases and for some purposes the Conclusiveness of a 
judicial determination is, beyond question, final and absolute. A 
decision once made in a particular controversy, by the highest 
court empowered to pass upon it, is conclusive upon the parties 
to the litigation and their privies, and they are not allowed 



effect. And it is equally true that there 
is no department on which it is more nec- 
essary to impose restraints than upon the 
legislature. The tendency of things is 
almost always to augment the power of 
that department in its relation to the judi- 
ciary. The judiciary is composed of few 
persons, and those not such as mix habit- 
ually in the pursuits and objects which 
most engage public men. They are not, 
or never should be, political men. They 
have often unpleasant duties to perform, 
and their conduct is often liable to be can- 
vassed and censured where their reasons 
for it are not known or cannot be under- 
stood. The legislature holds the public 
purse. It fixes the compensation of all 
other departments ; it applies as well as 
raises all revenue. It is a numerous 
body, and necessarily carries along with 
it a great force of public opinion. Its 
members are public men, in constant con- 
tact with one another and with their con- 
stituents. It would seem to be plain 
enough that, without constitutional pro- 
visions which should be fixed and certain, 
such a department, in case of excitement, 
would be able to encroach on the judi- 
ciary." ..." The constitution being the 
supreme law, it follows, of course, that 
every act of the legislature contrary to 



that law must be void. But who shall 
decide this question ? Shall the legisla- 
ture itself decide it ? If so, then the con- 
stitution ceases to be a legal, and becomes 
only a moral restraint upon the legisla- 
ture. If they, and they only, are to judge 
whether their acts be conformable to the 
constitution, then the constitution is ad- 
monitory or advisory only, not legally 
binding, because if the construction of it 
rests wholly with them, their discretion, 
in particular cases, may be in favor of 
very erroneous and dangerous construc- 
tions. Hence the courts of law neces- 
sarily, when the case arises, must decide 
on the validity of particular acts." 
" Without this check, no certain limita- 
tions could exist on the exercise of legis- 
lative power." See also, as to the dangers 
of legislative encroachments, De Tocque- 
ville, Democracy in America, c. 6 ; Story 
on Const. (4th ed.) 632 and note. The 
legislature though possessing a larger 
share of power, no more represents the 
sovereignty of the people than either of 
the other departments ; it derives its 
authority from the same high source. 
Bailey v. Philadelphia, &c. Railroad 
Co., 4 Harr. 389 ; Whittington v. Polk, 
1 II. & J. 236 ; McCauley v. Brooks, 16 
Cal. 11. 



80 



CONSTITUTIONAL LIMITATIONS. 



[CH. IV. 



afterwards to revive the controversy in a new proceeding for the 
purpose of raising the same or any other questions. The matter 
in dispute has become res judicata, a thing definitely settled by 
judicial decision; and the judgment of the court imports abso- 
lute verity. Whatever the question involved, whether the 
interpretation of a private contract, the legality of an individual 
act, or the validity of a legislative enactment, the rule of 
finality is the same. The controversy has been adjudged; and, 
once finally passed upon, it is never to be renewed. 1 It must 



1 Duchess of Kingston's Case, 11 State 
Trials, 261, 2 Smith, Lead. Cas. 424; 
Young v. Black, 7 Cranch, 565 ; Chapman 
v. Smith, 16 How. 114; Aurora City r. 
West, 7 Wall. 82 ; Tioga R. R. Co. v. Bloss- 
burg, &c. R, R. Co., 20 Wall. 137 ; The 
Rio Grande, 23 Wall. 458 ; Coffey v. United 
States, 116 U. S. 436; 6 Sup. Ct. Rep. 
437 ; United States v. Parker, 120 U. S. 
89, 7 Sup. Ct. Rep. 454; Wilson's Exec. 
v. Deen, 121 U. S. 525, 7 Sup. Ct. Rep. 
1004; Skelding v. Whitney, 3 Wend. 154; 
Etheredge v. Osborn, 12 Wend. 399; 
Hayes v. Reese, 34 Barb. 151 ; Hyatt v. 
Bates, 35 Barb. 308; Harris v. Harris, 
36 Barb. 88 ; Maddox v. Graham, 2 Met. 
(Ky.) 56; Porter v. Hill, 9 Mass. 34; 
Norton v. Doherty, 3 Gray, 372; Thurs- 
ton v. Thurston, 99 Mass. 39; Way v. 
Lewis, 115 Mass. 26 ; Blackinton v. Black- 
inton, 113 Mass. 231 ; Witmer v. Sehlat- 
ter, 15 S. & R. 150 ; Warner v. Scott, 39 
Pa. St. 274; Verner v. Carson, 66 Pa. 
St. 440; Kerr v. Union Bank, 18 Md.396; 
Whitehurst v. Rogers, 38 Md. 503 ; Wales 
v. Lyon, 2 Mich. 276 ; Prentiss v. Holbrook, 
2 Mich. 372; Van Kleek v. Eggleston, 7 
Mich. 511; Newberry v. Trowbridge, 13 
Mich. 278; Barker v. Cleveland, 19 Mich. 
230 ; Winslow v. Grindall, 2 Me. 64 ; Slade 
v. Slade, 58 Me. 157; Crandall v. James, 
6 R. I. 144; Babcock v. Camp, 12 Ohio 
St. 11 ; Hawkins v. Jones, 19 Ohio St. 22; 
George v. Gillespie, 1 Greene (Iowa), 421 ; 
Taylor v. Chambers, 1 Iowa, 124 ; Wright 
v. Leclair, 3 Iowa, 221 ; Clark r. Sammons, 
12 Iowa, 368; Whittaker i\ Johnson Co., 
12 Iowa. 595 ; Dwyer v. Goran, 29 Iowa, 
126 ; Fairfield v. McNany, 37 Iowa, 75 ; 
Eimer v. Richards, 25 111.289; Wells v. 
McClenning, 23 111. 409; Crow u.Bowlby, 
68 III. 23 ; Peay v. Duncan, 20 Ark. 85 ; 
Perrine v. Serrell, 30 N. J. 454; Weber v. 
Morris, &c., 36 N. J. 213 ; Fischli v. Cowan, 
1 Blackf. 350; Denny v. Reynolds, 24Ind. 
248 ; Bates v. Spooner, 45 Ind. 489 ; Daven- 



port v. Barnett, 51 Ind. 329 ; Center Tp. v. 
Com'rs Marion Co., 110 Ind. 579, 10 N. 
E. 291 ; Warwick v. Underwood, 3 Head, 
288 ; Jones v. Weathersbee, 4 Strob. 50 ; 
Hoover v. Mitchell, 25 Gratt. 387 ; Hun- 
gerford's Appeal, 41 Conn. 322 ; Union 
R. R. Co. v. Traube, 59 Mo. 355 ; Perry 
v. Lewis, 49 Miss. 443 ; Harris v. Colquit, 
44 Ga. 663 ; McCauley v. Hargroves, 48 
Ga. 50, 15 Am. Rep. 660; Castellaw v. 
Guilmartin, 54 Ga. 299; Sloan r. Cooper, 
54 Ga. 486; Doyle v. Hallam, 21 Minn. 
515; Philpotts v. Blasdel, 10 Nev. 19; 
Case v. New Orleans, &c. R. R., 2 Woods, 
236; Geary v. Simmons, 39 Cal. 224; Gee 
v. Williamson, 1 Port. (Ala.) 313, 27 Am. 
Dec. 628; Cannon v. Brame, 45 Ala. 
262; Finney v. Boyd, 26 Wis. 366; War- 
ner v. Trow, 36 Wis. 195; Schroers v. 
Fisk, 10 Col. 599, 16 Pac. 285. Ram on 
Legal Judgment, c. 14. A judgment, 
however, is conclusive as an estoppel, 
as to those facts only without the exis- 
tence and proof of which it could not 
have b?en rendered; and if it might have 
been given on any one of several grounds, 
it is conclusive between the parties as to 
neither of them. Lea v. Lea, 99 Mass. 
493. And see Dickinson v. Hayes, 31 
Conn. 417 ; Church v. Chapin, 35 Vt. 223 ; 
Packet Co. v. Sickles, 5 Wall. 580 ; Spen- 
cer v. Dearth, 43 Vt. 98 ; Hill v. Morse, 
61 Me. 641. A judicial sale by an admin- 
istrator will pass title though the sup- 
posed intestate proves to be living. Rod- 
erigas v. Savings Institution, 63 N. Y. 
460; s. c. 20 Am. Rep. 555; contra, John- 
son v. Beazley, 65 Mo. 260 ; s. c. 27 Am. 
Rep. 285, and note. QDeath of the al- 
leged intestate is a jurisdictional fact, and 
in the absence of such fact any admin- 
istration upon his estate is null. Scott v. 
McNeal, 154 U. S. 34, 14 Sup. Ct. Rep. 
1108; rev. 5 Wash. 309, 31 Pac. 873, 34 
Am. St. 863. Many authorities are cited 
in 154 U. S. at page 48.] 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 81 

frequently happen, therefore, that a question of constitutional 
law will be decided in a private litigation, and the parties to the 
controversy, and all others subsequently acquiring rights under 
them, in the subject-matter of the suit, will thereby become 
absolutely and forever precluded from renewing the question in 
respect to the matter then involved. The rule of conclusiveness 
to this extent is one of the most inflexible principles of the law ; 
insomuch that even if it were subsequently held by the courts 
that the decision in the particular case was erroneous, such 
holding would not authorize the reopening of the old controversy 
in order that the final conclusion might be applied thereto. 1 

But if important principles of constitutional law can be thus 
disposed of in suits involving only private rights, and when pri- 
vate individuals and their counsel alone are heard, it becomes of 
interest to know how far, if at all, other individuals and the 
public at large are affected by the decision. And here it will 
be discovered that quite a different rule prevails, and that a 
judicial decision has no such force of absolute conclusiveness as 
to other parties as it is allowed to possess between the parties to 
the litigation in which the decision has been made, and those 
who have succeeded to their rights. 

A party is concluded by a judgment against him from disput- 
ing its correctness, so far as the point directly involved in the 
case was concerned, whether the reasons upon which it was based 
were sound or not, and even if no reasons were given therefor. 
And if the parties themselves are concluded, so also should be 
all those who, since the decision, claim to have acquired inter- 
ests in the subject-matter of the judgment from or under the 
parties, as personal representatives, heirs-at-law, donees, or 
purchasers, and who are therefore considered in the law as 
privies. 2 But if strangers who have no interest in that subject- 

1 McLean v. Hugarin, 13 Johns. 184; lein v. Martin, 59 Cal. 181 ; Frankland v. 

Morgan v. Plumb, 9 Wend. 287 ; Wilder Cassaday, 62 Texas, 418 ; Adams Co. v. 

v. Case, 16 Wend. 583 ; Baker v. Rand, 13 Burlington & M. R. R. Co., 55 Iowa, 94, 

Barb. 152 ; Kelley v. Pike, 5 Cusli. 484; 7 N. W. 471. But see Barton v. Thomp- 

Hart v. Jewett, 11 Iowa, 276; Colburn son, 56 Iowa, 571, 9 N. W. 899. 
f. Woodworth, 31 Barb. 381; Newberry v. 2 The question whether a judgment, 

Trowbridge, 13 Mich. 278; Skeldin v. by force of its recitals, shall operate as 

Whitney, 3 Wend. 154 ; Brockway j;. Kin- a technical estoppel, or whether it shall 

ney, 2 Johns. 210; Plainer a. Best, 11 operate as a bar only after the proper parol 

Johns. 530; Phillips v. Berick, 16 Johns, evidence shall have been given to identify 

136 ; Page v. Fowler, 37 Cal. 100; Howi- the subject of litigation, is one which our 

son v. Weeden, 77 Va. 704. The rule laid subject does not require us to discuss. The 

down becomes the law of the case. Bibb cases are examined fully and with dis- 

v. Bibb, 79 Ala. 437 ; Weare v. Bearing, crimination in Robinson's Practice, Vol. 

60 N. H. 56; Pittsburgh, &c. Ry. Co. v. VI., and are also discussed in Bigelow on 

Hixon, 110 Ind. 225, 11 N. E. 285 ; Hein- Estoppel. 

6 



82 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

matter are to be in like manner concluded, because their con- 
troversies are supposed to involve the same question of law, we 
shall not only be forced into a series of endless inquiries, often 
resulting in little satisfaction, in order to ascertain whether the 
question is the same, but we shall also be met by the query, 
whether we are not concluding parties by decisions which others 
have obtained in fictitious controversies and by collusion, or 
have suffered to pass without sufficient consideration and dis- 
cussion, and which might perhaps have been given otherwise 
had other parties had an opportunity of being heard. 

We have already seen that the force of a judgment does not 
depend upon the reasons given therefor, or upon the circum- 
stance that any were or were not given. If there were, they 
may have covered portions of the controversy only, or they may 
have had such reference to facts peculiar to that case, that in 
any other controversy, though somewhat similar in its facts, 
and apparently resembling it in its legal bearings, grave doubts 
might arise whether it ought to fall within the same general 
principle. If one judgment were absolutely to conclude the 
parties to any similar controversy, we ought at least to be able 
to look into the judicial mind, in order that we might ascertain 
of a surety that all those facts which should influence the ques- 
tions of law were substantially the same in each, and we ought 
also to be able to see that the first litigation was conducted in 
entire good faith, and that every consideration was presented to 
the court which could properly have weight in the construction 
and application of the law. All these things, however, are 
manifestly impossible; and the law therefore wisely excludes 
judgments from being used to the prejudice of strangers to the 
controversy, and restricts their conclusiveness to the parties 
thereto and their privies. 1 Even parties and privies are bound 
only so far as regards the subject-matter then involved, and 
would be at liberty to raise the same questions anew, in a dis- 
tinct controversy affecting some distinct subject-matter. 2 

i Burrill v. West, 2 N. H. 190 ; Davis Floyd v. Mintsey, 5 Rich. 361 ; Riggin's 

v. Wood, 1 Wheat. 6 ; Jackson v. Vedder, Ex'rs v. Brown, 12 Ga. 271; Persons v. 

3 Johns. 8; Case v. Reeve, 14 Johns. 79; Jones, 12 Ga. 371 ; Buckingham v. Lud- 

Alexander v. Taylor, 4 Denio, 302; Van lum, 37 N. J. Eq. 137; Scales v. King, 

Bokkelin v. Ingersoll, 5 Wend. 315 ; Smith 110 111. 456 ; Leslie v. Bonte, 130 111. 498, 

v. Ballantyne, 10 Paige, 101; Orphan 22 N. E. Rep. 694; Tiffany v. Stewart, 

House v. Lawrence, 11 Paige, 80; Thomas 60 Iowa, 207, 14 N. W. 241; Lord v. 

v. Hubbell, 15 N. Y. 405; Masten v. Ol- Wilcox, 99 Ind 491. Compare Benedict 

cott, 101 N. Y. 152, 4 N. E. 274; Wood v. Smith, 48 Mich. 593, 12 N. W. 866; 

v. Stephen, 1 Serg. & R. 175; Peterson v. Howison v. Weeden, 77 Va. 704; Robin- 

Lothrrfp, 34 Pa. St. 223; Twambly v. son's Practice, Vol. VII. 134 to 156; 

Henley, 4 Mass. 441 ; Este c. Strong, 2 Bigelow on Estoppel, 46 et seq. 
Ohio, 402; Cowles v. Harts, 3 Conn. 516 ; 2 Van Alstine v. Railroad Co., 34 Barb. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 83 

All judgments, however, are supposed to apply the existing 
law to the facts of the case ; and the reasons which are sufficient 
to influence the court to a particular conclusion in one case 
ought to be sufficient to bring it or any other court to the same 
conclusion in all other like cases where no modification of the 
law has intervened. There would thus be uniform rules for the 
administration of justice, and the same measure that is meted 
out to one would be received by all others. And even if the 
same or any other court, in a subsequent case, should be in 
doubt concerning the correctness of the decision which has been 
made, there are consequences of a very grave character to be 
contemplated and weighed before the experiment of disregarding 
it should be ventured upon. That state of things, when judicial 
decisions conflict, so that a citizen is always at a loss in regard 
to his rights and his duties, is a very serious evil ; and the 
alternative of accepting adjudged cases as precedents in future 
controversies resting upon analogous facts, and brought within 
the same reasons, is obviously preferable. Precedents, there- 
fore, become important, and counsel are allowed and expected 
to call the attention of the court to them, not as concluding 
controversies, but as guides to the judicial mind. Chancellor 
Kent says: "A solemn decision upon a point of law arising in 
any given case becomes an authority in a like case, because it 
is the highest evidence which we can have of the law applicable 
to the subject, and the judges are bound to follow that decision 
so long as it stands unreversed, unless it can be shown that the 
law was misunderstood or misapplied in that particular case. If 
a decision has been made upon solemn argument and mature 
deliberation, the presumption is in favor of its correctness, and 
the community have a right to regard it as a just declaration or 

28; Taylor v. McCrackin, 2 Blackf. 260; facts were within the issue, the judgment 
Cook r. Vimont, 6 T. B. Monr. 284. If is conclusive as to them, although the 
certain facts were not necessarily in- question raised in the second action was 
eluded in the issue, a party is not con- not actually litigated. Harmon v. Audi- 
eluded by the judgment as to them, tor, 123 III. 123, 13 N. E. 161; Fairchild 
Davis v. Davis, 65 Miss. 498, 4 So. 554 ; v. Lynch, 99 N. Y. 359, 2 N. E. 20 ; Tray- 
Doonan v. Glynn, 28 W. Va. 715 ; Loril- hern v. Colburn, 66 Md. 277, 7 All. 459 ; 
lard v. Clyde, 99 N. Y. 196, 1 N. E. 614 ; Kennedy v. McCarthy, 73 Ga. 346 ; Shen- 
Belden v. State, 103 N. Y. 1, 8 N. E. 363; andoah V. R. R. Co. v. Griffith, 76 Va. 
Umlauf v. Umlauf, 117 111. 580, 6 N. E. 913; Cleveland v. Creviston, 93 Ind. 81; 
455; Concha v. Concha, L. R. 11 App. Chouteau v. Gibson, 76 Mo. 38. See, for 
Cas. 541. If the second action involves a further discussion of this doctrine, its 
the same property and more, the judg- meaning and extent, Spencer v. Dearth, 
ment is conclusive only as to those issues 43 Vt. 98, and the very full and exhaus- 
which were actually tried and determined, tive discussion in Robinson's Practice, 
Foye v. Patch, 132 Mass. 105. See Met- Vol. VII. 
calf v. Gilmore, 63 N. H. 174. But if th* 



84 



CONSTITUTIONAL LIMITATIONS. 



[CH. IV. 



exposition of the law, and to regulate their actions and contracts 
by it. It would therefore be extremely inconvenient to the public 
if precedents were not duly regarded, and implicitly followed. 
It is by the notoriety and stability of such rules that professional 
men can give safe advice to those who consult them, and people 
in general can venture to buy and trust, and to deal with each 
other. If judicial decisions were to be lightly disregarded, we 
should disturb and unsettle the great landmarks of property. 
When a rule has once been deliberately adopted and declared, 
it ought not to be disturbed unless by a court of appeal or review, 
and never by the same court, except for very urgent reasons, and 
upon a clear manifestation of error; and if the practice were 
otherwise, it would be leaving us in a perplexing uncertainty as 
to the law. 1 



1 1 Kent, 475. And see Cro. Jac. 527 ; 
Rex v. Cox, 2 Burr. 787 ; King v. Younger, 
6 T. R. 450; Goodtitle t-. Otway, 7 T. R. 
416; Selby v. Bardons, 3 B. & Ad. 17; 
Fletcher v. Lord Somers, 3 Bing. 588; 
Hammond r. Anderson, 4 Bos. & P. 69; 
Lewis v, Thornton, 6 Munf. 94 ; Dugan v. 
Hollins, 13 Md. 149; Anderson v. Jack- 
son, 16 Johns. 382 ; Goodell v. Jackson, 
20 Johns. 693 ; Bates o. Relyea, 23 Wend- 
336; Emerson v. Atwater, 7 Mich. 12; 
Kelson v. Allen, 1 Yerg. 3(30; Palmer v. 
Lawrence, 5 N. Y. 389 ; Kneeland v. Mil- 
waukee, 15 Wis. 454 ; Boon r. Bowers, 
30 Miss. 216; Frink v. Darst, 14 111. 304; 
Broom's Maxims, 109. Dr. Lieber thinks 
the doctrine of the precedent especially 
valuable in a free country. " Liberty and 
steady progression require the principle 
of the precedent in all spheres. It is one 
of the roots with which the tree of liberty 
fastens in the soil of real life, and through 
which it receives the sap of fresh exist- 
ence. It is the weapon by which inter- 
ference is warded off. The principle of 
the precedent is eminently philosophical. 
The English Constitution would not have 
developed itself without it. What is called 
the English Constitution consists of the 
fundamentals of the British polity, laid 
down in custom, precedent, decisions, and 
statutes ; and the common law in it is a 
far greater portion than the statute law. 
The English Constitution is chiefly a com- 
mon-law constitution ; and this reflex of 
a continuous society in a continuous law 
is more truly philosophical than the theo- 
retic and systematic, but lifeless, consti- 



tutions of recent France." Civ. Lib. and 
Self-Gov. See also his chapter on prece- 
dents in the Hermeneutics. In Nelson v. 
Allen, 1 Yerg. 360, 376, where the consti- 
tutionality of the " Betterment Law " 
came under consideration, the court 
( White, J.) say : " Whatever might be 
my own opinion upon this question, not 
to assent to its settlement now, after two 
solemn decisions of this court, the last 
made upwards of fourteen years ago, and 
not only no opposing decision, but no at- 
tempt even by any case, during all this 
time, to call the point again in contro- 
versy, forming a complete acquiescence, 
would be, at the least, inconsistent, per- 
haps mischievous, and uncalled for by a 
correct discharge of official duty. Much 
respect has always been paid to the con- 
temporaneous construction of statutes, 
and a forbidding caution hath always 
accompanied any approach towards un- 
settling it, dictated, no doubt, by easily 
foreseen consequences attending a sud- 
den change of a rule of property, neces- 
sarily introductory at least of confusion, 
increased litigation, and the disturbance 
of the peace of society. The most able 
judges and the greatest names on the 
bench have held this view of the subject, 
and occasionally expressed themselves 
to that effect, either tacitly or openly, 
intimating that if they had held a part 
in the first construction they would have 
been of a different opinion ; but the con- 
struction having been made, they give 
their assent thereto. Thus Lord Ellen- 
borough, in 2 East, 302, remarks : ' I think 



CH. IT.] .CONSTRUCTION OF STATE CONSTITUTIONS. 85 

The doctrine of stare decisis, however, is only applicable, in 
its full force, within the territorial jurisdiction of the courts 
making the decisions, since there alone can such decisions be 
regarded as having established any rules. Rulings made under 
a similar legal system elsewhere may be cited and respected for 
their reasons, but are not necessarily to be accepted as guides, 
except in so far as those reasons commend themselves to the 
judicial mind. 1 Great Britain and the thirteen original States 
had each substantially the same system of common law origi- 
nally, and a decision now by one of the higher courts of Great 
Britain as to what the common law is upon any point is cer- 
tainly entitled to great respect in any of the States, though not 
necessarily to be accepted as binding authority any more than 
the decisions in any one of the other States upon the same point. 
It gives us the opinions of able judges as to what the law is, 
but its force as an authoritative declaration must be confined 
to the country for which the court sits and judges. But an 
English decision before the Revolution is in the direct line of 
authority ; and where a particular statute or clause of the con- 
stitution has been adopted in one State from the statutes or 
constitution of another, after a judicial construction has been 
given it in such last-mentioned State, it is but just to regard 
the construction as having been adopted, as well as the words; 
and all the mischiefs of disregarding precedents would follow as 
legitimately here as in any other case. 2 

it is better to abide by that determina- one given under the law of necessity, in 

tion, than to introduce uncertainty into consequence of an equal division of the 

this branch of the law, it being often more court, see Durant v. Essex Co., 7 Wall, 

important to have the rule settled, than 107 ; s. c. 101 U. S. 555 ; Hartman v. 

to determine what it shall be. I am not, Greenhow, 102 U. S. 672 ; Morse v. Goold, 

however, convinced by the reasoning in UN. Y. 281; Lyon v. Circuit Judge, 37 

this case, and if the point were new I Mich. 377 ; and the cases collected in 

should think otherwise.' Lord Mansfield, Northern R. II. v. Concord R. R., 50 N. H. 

in 1 Burr. 419, says : ' Where solemn de- 176. 

terminations acquiesced under had settled 1 Caldwell v. Gale, 11 Mich. 77 ; Koontz 

precise cases and a rule of property, they v. Nabb, 16 Md. 549; Nelson v. Goree, 34 

ought, for the sake of certainty, to be ob- Ala. 665 ; Jamison v. Burton, 43 Iowa, 

served, as if they had originally formed a 282. 

part of the text of the statute.' And Sir 2 Bond v. Appleton, 8 Mass. 472 ; Rut- 
James Mansfield, in 4 B. & P. 69, says: land v. Mendon, 1 Pick. 154; Common- 
'Ido not know how to distinguish this wealth v. Hartnett, 3 Gray, 450; Turn- 
from the case before decided in the court, pike Co. v. People, 9 Barb. 167 ; Campbell 
It is of greater consequence that the law . Quinlin, 4 111. 288 ; Little v. Smith, 
should be as uniform as possible, than 5 111. 400 ; Rigg v. Wilton, 13 111. 15 ; 
that the equitable claim of an individual Tyler v. Tyler, 19 111. 151 ; Fisher v. Deer- 
should be attended to.' " And see People ing, 60 111. 114; Langdon v. Applegate, 
v. Cicotte, 16 Mich. 283. 6 Ind. 327 ; Clark v. Jeffersonville, &c. 
How far a judgment rendered by a R. R. Co., 44 Ind. 248 ; Fall v. Hazelrigg, 
court concludes, notwithstanding it was 45 Ind. 576; Ingraham v. Regan, 23 



86 



CONSTITUTIONAL LIMITATIONS. 



[CH. IV. 



It will of course sometimes happen that a court will find a 
former decision so unfounded in law, so unreasonable in its 
deductions, or so mischievous in its consequences, as to feel 
compelled to disregard it. Before doing so, however, it will be 
well to consider whether the point involved is such as to have 
become a rule of property, so that titles have been acquired in 
reliance upon it, and vested rights will be disturbed by any 
change ; for in such a case it may be better that the correction 
of the error be left to the legislature, which can control its 
action so as to make it prospective only, and thus prevent unjust 
consequences. 1 



Miss. 213 ; Adams v. Field, 21 Vt. 256 ; 
Drennan v. People, 10 Mich. 169; Daniels 
v. Clegg, 28 Mich. 32 ; Harrison v. Sager, 
27 Mich. 476 ; Pangborn v. Westlake, 36 
Iowa, 546; Attorney-General v. Brunst, 
3 Wis. 787 ; Poertner v. Russell, 33 Wis. 
193 ; Myrick v. Hasey, 27 Me. 9 ; People 
v. Coleman, 4 Cal. 46 ; Bemis v. Becker, 
1 Kan. 226 ; Walker v. Cincinnati, 21 Ohio 
St. 14 ; Hess v. Pegg, 7 Nev. 23 ; Freeze 
v. Tripp, 70 111. 496 ; In re Tuller, 79 111. 
99 ; Ex parte Mathews, 52 Ala. 51 ; Dan- 
ville v. Pace, 25 Gratt. 1 ; Bradbury v. 
Davis, 5 Col. 265. But it does not neces- 
sarily follow that the prior decision 
construing the law must be inflexibly fol- 
lowed, since the circumstances in the 
State adopting it may be so different as 
to require a different construction. Little 
v. Smith, 5 111. 400 ; Lessee of Gray v. 
Askew, 3 Ohio, 466; Jamison v. Burton, 
43 Iowa, 282. It has very properly been 
held that the legislature, by enacting, 
without material alteration, a statute 
which had been judicially expounded by 
the highest court of the State, must be 
presumed to have intended that the same 
words should be received in the new stat- 
ute in the sense which had been attributed 
to them in the old. Grace v. McElroy, 
1 Allen, 563 ; Cronan v. Getting, 104 Mass. 
245; Low v. Blanchard, 116 Mass. 272. 
It is proper to accept and follow the de- 
cisions of courts of another State upon 
the construction and validity of their 
own statutes. Sidwell v. Evans, 1 Pen. 
& W. 383; s. c. 21 Am. Dec. 387; Bank 
of Illinois c. Sloo, 16 La. 539, 35 Am. 
Dec. 223, except when it conflicts with 
the constitution of the adopting State. 
Risser v. Hoyt, 63 Mich. 185, 18 N. W. 
611. 



1 " After an erroneous decision touch- 
ing rights of property has been followed 
thirty or forty years, and even a much 
less time, the courts cannot retrace their 
steps without committing a new error 
nearly as great as the one at the first." 
Branson, J., in Sparrow v. Kingman, 
1 N. Y. 246, 260. See also Emerson v. 
At water, 7 Mich. 12; Rothschild v. Grix, 
31 Mich. 150; Loeb v. Mathis, 37 Ind. 
306; Pond t;. Irwin, 113 Ind. 243, 15 
N. E. Rep. 272; Paulson v. Portland, 
16 Oreg. 450, 19 Pac. Rep. 450 ; Adams 
Co. v. Burlington & M. E. R. Co., 65 
Iowa, 94, 2 N. W. 1054; Davidson v. 
Briggs, 61 Iowa, 309, 7 N. W. 471 ; State 
v. Whitworth, 8 Lea, 594. Where an 
old constitution has been construed by 
the court, a new court after the adoption 
of a new constitution will follow the old 
construction without regard to its own 
views. Emery v. Reed, 65 Cal. 351, 
4 Pac. 200. 

" It is true that when a principle of 
law, doubtful in its character or uncer- 
tain in the subject-matter of its appli- 
cation, has been settled by a series of 
judicial decisions, and acquiesced in fora 
considerable time, and important rights 
and interests have become established 
under such decisions, courts will hesitate 
long before they will attempt to overturn 
the result so long established. But when 
it is apparently indifferent which of two 
or more rules is adopted, the one which 
shall have been adopted by judicial sanc- 
tion will be adhered to, though it may 
not, at the moment, appear to be the 
preferable rule. But when a question 
involving important public or private 
rights, extending through all coming 
time, has been passed upon on a single 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 87 

Whenever the case is such that judicial decisions which have 
been made are to be accepted as law, and followed by the courts 
in future cases, it is equally to be expected that they will be 
followed by other departments of the government also. Indeed, 
in the great majority of cases, the officers of other departments 
have no option; for the courts possess the power to enforce 
their construction of the law as well as to declare it; and a 
failure to accept and follow it in one case would only create a 
necessity for new litigation with similar result. Nevertheless, 
there are exceptions to this rule which embrace all those cases 
where new action is asked of another department, which that 
department is at liberty to grant or refuse for any reasons which 
it may regard as sufficient. We cannot conceive that, because 
the courts have declared an expiring corporation to have been 
constitutionally created, the legislature would be bound to renew 
its charter, or the executive to sign an act for that purpose, if 
doubtful of the constitutional authority, even though no other 
adverse reasons existed. 1 In the enactment of laws the legisla- 
ture must act upon its own reasons; mixed motives of power, 
justice, and policy influence its action; and it is always justifi- 
able and laudable to lean against a violation of the constitution. 
Indeed, cases must sometimes occur when a court should refrain 
from declaring a statute unconstitutional, because not clearly 
satisfied that it is so, though, if the judges were to act as legis- 
lators upon the question of its enactment, they ought with the 

occasion, and which decision can in no Owen, 43 Texas, 41, 48 ; Ram on Legal 
just sense be said to have been acqui- Judgment, c. 14, 3. "Common error" 
esced in, it is not only the right, but the does not make law until sanctioned by a su- 
duty, of the court, when properly called perior tribunal, and subsequently treated 
upon, to re-examine the questions in- as law in business affairs. Ocean Beach 
volved, and again subject them to ju- Ass. v. Brinley, 34 N. J. Eq. 438. 
dicial scrutiny. We are by no means * In the celebrated case of the appli- 
unmindful of the salutary tendency of cation of the Bank of the United States 
the rule stare decisis, but at the same for a new chapter, President Jackson felt 
time we cannot be unmindful of the les- himself at liberty to act upon his own 
sons furnished by our own consciousness, view of constitutional power, in opposi- 
as well as by judicial history, of the lia- tion to that previously declared by the 
bility to error and the advantages of Supreme Court, and President Lincoln 
review." Per Smith, J., Pratt v. Brown, expressed similar views regarding the 
3 Wis. 603, 609. And see Kneeland v. Mil- conclusiveness of the Dred Scott decision 
waukee, 15 Wis. 454 ; Taylor v. French, upon executive and legislative action. 
19 Vt. 49; Bellows v. Parsons, 13 N. H. See Story on Const. (4th ed.) 375, note. 
256; Hannel v. Smith, 15 Ohio, 134 ; Day It is notorious that while the reconstruc- 
ts. Munson, 14 Ohio St. 488; Green Cas- tion of States was going on, after the late 
tie, &c. Co. v State, 28 Ind. 382 ; Harrow Civil War, Congress took especial pains in 
v. Myers, 29 Ind. 469 ; Paul v. Davis, some cases to so shape its legislation that 
100 Ind. 422 ; Burks v. Hinton, 77 Va. the Federal Supreme Court should have 
1 ; Mead v. McGraw, 19 Ohio St. 55 ; no opportunity to question and deny its 
Linn v. Minor, 4 Nev. 462 ; Willis v. validity. 



88 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

same views to withhold their assent, from grave doubts upon 
that subject. The duty is different in the two cases, and pre- 
sumptions may control in one which do not exist in the other. 1 
But those cases where new legislation is sought stand by them- 
selves, and are not precedents for those which involve only 
considerations concerning the constitutional validity of existing 
enactments. The general acceptance of judicial decisions as 
authoritative, by each and all, can alone prevent confusion, 
doubt, and uncertainty, and any other course is incompatible 
with a true government of law. 

Construction to be Uniform. 

A cardinal rule in dealing with written instruments is that 
they are to receive an unvarying interpretation, and that their 
practical construction is to be uniform. A constitution is not 
to be made to mean one thing at one time, and another at some 
subsequent time when the circumstances may have so changed 
as perhaps to make a different rule in the case seern desirable. 
A principal share of the benefit expected from written constitu- 
tions would be lost if the rules they established were so flexible 
as to bend to circumstances or be modified by public opinion. 
It is with special reference to the varying moods of public opin- 
ion, and with a view to putting the fundamentals of government 
beyond their control, that these instruments are framed; and 
there can be no such steady and imperceptible change in their 
rules as inheres in the principles of the common law. Those 
beneficent maxims of the common law which guard person and 
property have grown and expanded until they mean vastly more 
to us than they did to our ancestors, and are more minute, 
particular, and pervading in their protections; and we may con- 
fidently look forward in the future to still further modifications 
in the direction of improvement. Public sentiment and action 
effect such changes, and the courts recognize them; but a court 
or legislature which should allow a change in public sentiment 
to influence it in giving to a written constitution a construction 
not warranted by the intention of its founders, would be justly 
chargeable with reckless disregard of official oath and public 
duty ; and if its course could become a precedent, these instru- 

1 A constitution forbade the pnyment after its completion bad been declared 

of any claim arising against the State unconstitutional; that the word "law" 

under any agreement made without an- did not necessarily mean a constitutional 

thority of law. It was held that this did law. Miller v. Dunn, 72 Cal. 462, 14 

not prevent the legislature from award- Pac. 27. 
ing pay for work done under an act which 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 89 

ments would be of little avail. The violence of public passion 
is quite as likely to be in the direction of oppression as in any 
other; and the necessity for bills of rights in our fundamental 
laws lies mainly in the danger that the legislature will be 
influenced, by temporary excitements and passions among the 
people, to adopt oppressive enactments. What a court is to do, 
therefore, is to declare the law as written, leaving it to the people 
themselves to make such changes as new circumstances may 
require. 1 The meaning of the constitution is fixed when it is 
adopted, and it is not different at any subsequent time when a 
court has occasion to pass upon it. 2 

The Intent to Govern. 

The object of construction, as applied to a written constitu- 
tion, is to give effect to the intent of the people in adopting it. In 
the case of all written laws, it is the intent of the lawgiver that 
is to be enforced. But this intent is to be found in the instru- 
ment itself. It is to be presumed that language has been 
employed with sufficient precision to convey it, and unless 
examination demonstrates that the presumption does not hold 
good in the particular case, nothing will remain except to 
enforce it. " Where a law is plain and unambiguous, whether 
it be expressed in general or limited terms, the legislature 
should be intended to mean what they have plainly expressed, 
and consequently no room is left for construction." 3 Possible 

1 People v. Morrell, 21 Wend. 563 ; Heirs of Ludlow v. Johnson, 3 Ohio, 553; 
Newell v. People, 7 N. Y. 9; Hyatt v. District Township v. Dubuque, 7 Iowa, 
Taylor, 42 N. Y. 258; Slack v. Jacobs, 8 262; Pattison v. Yuba, 13 Cal. 175; Eze- 
W. Va. 612, 650. kiel v. Dixon, 3 Ga. 146; In re Murphy, 

2 Campbell, J., in People v. Blodgett, 23 N. J. 180 ; Attorney-General ?-. Detroit 
13 Mich. 127, 138; Scott v. Sandford, 19 & Erin P. R. Co., 2 Mich. 138; Smith 
How. 393. v. Thursby, 28 Md. 244 ; State v. Blasdel, 

8 United States v. Fisher, 2 Cranch, 4 Nev. 241 ; State v. Doron, 5 Nev. 399; 

358; Bosley v. Mattingley, 14 B. Monr. Hyatt r. Taylor, 42 N. Y. 268; Johnson 

89; Sturgis v. Crowninshield, 4 Wheat, v. Hudson R. R. Co., 49 N. Y. 456; 

122 ; Schooner Paulina's Cargo v. United Beardstown v. Virginia, 76 111. 34 ; St. 

States, 7 Cranch, 52 ; Ogden v. Strong, 2 Louis, &c. R. R. Co. v. Clark, 53 Mo. 214 ; 

Paine, C. C. 584 ; United States v. Rags- Mundt v. Sheboygan, &c. R. R. Co., 31 

dale, 1 Hemp. 497; Southwark Bank v. Wis. 41; Slack v. Jacob, 8 W. Va. 612; 

Commonwealth, 26 Penn. St 446; Ingalls Hawbecker v. Hawbecker, 43 Md. 516; 

. Cole, 47 Me. 630; McCluskey v. Crom- Ex par (t Mayor of Florence, 78 Ala. 419. 

well. 11 N Y. 593; Furman v. New York, The remarks of Mr. Justice Branson in 

6 Sandf . 16 ; Newell v. People, 7 N. Y. 9 ; People v. Purdy, 2 Hill, 35, are very forci- 

People v. N. Y. Central R. R. Co., 24 N. Y. ble in sltowing the impolicy and danger 

485; Bidwell v Whittaker, 1 Mich. 469; of looking beyond the instrument itself 

Alexander v. Worthington, 6 Md. 471 ; to ascertain its meaning, when the terms 

Cantwell v. Owens, 14 Md. 215 ; Case v. employed are positive and free from all 

Wildridge, 4 Ind. 51 ; Spencer v. State, ambiguity. " It is said that the Consti- 

6 Ind. 41 ; Pitman v. Flint, 10 Pick. 604 ; tution does not extend to public corpora- 



90 



COXSTITUTIOXAL LIMITATIONS. 



[CH. IV. 



or even probable meanings, when one is plainly declared in the 



tions, and therefore a majority vote was 
sufficient. I do not so read the Consti- 
tution. The language of the clause is : 
' The assent of two-thirds of the mem- 
bers elected to each branch of the legis- 
lature shall be requisite to every bill creat- 
ing, continuing, altering, or renewing any 
body politic or corporate.' These words 
are as broad in their signification as any 
which could have been selected for the 
occasion from our vocabulary, and there 
is not a syllable in the whole instrument 
tending in the slightest degree to limit or 
qualify the universality of the language. 
If the clause can be so construed that it 
shall not extend alike to all corporations, 
whether public or private, it may then, I 
think, be set down as an established fact 
that the English language is too poor for 
the framing of fundamental laws which 
shall limit the powers of the legislative 
branch of the government. No one has, 
I believe, pretended that the Constitution, 
looking at that alone, can be restricted to 
any particular class or description of cor- 
porations. But it is said that we may 
look beyond the instrument for the pur- 
pose of ascertaining the mischief against 
which the clause was directed, and thus 
restrict its operation. But who shall tell 
us what that mischief was 1 Although 
most men in public life are old enough to 
remember the time when the Constitution 
was framed and adopted, they are not 
agreed concerning the particular evils 
against which this clause was directed. 
Some suppose the clause was intended to 
guard against legislative corruption, and 
others that it was aimed at monopolies. 
Some are of opinion that it only extends 
to private without touching public cor- 
porations, while others suppose that it 
only restricts the power of the legislature 
when creating a single corporation, and 
not when they are made by the hundred. 
In this way a solemn instrument for so 
I think the Constitution should be con- 
sidered is made to mean one thing 
by one man and something else by an- 
other, until, in the end, it is in danger of 
being rendered a mere dead letter ; and 
that, too, where the language is so plain 
and explicit that it is impossible to mean 
more than one thing, unless we first lose 
sight of the instrument itself, and allow 
ourselves to roam at large in the bound- 



less fields of speculation. For one, I dare 
not venture upon such a course. Written 
constitutions of government will soon 
come to be regarded as of little value if 
their injunctions may be thus lightly over- 
looked ; and the experiment of setting a 
boundary to power will prove a failure. 
We are not at liberty to presume that 
the framers of the Constitution, or the 
people who adopted it, did not under- 
stand the force of language." See also 
same case, 4 Hill, 384, and State v. King, 
44 Mo. 285. Another court has said : 
" This power of construction in courts is 
a mighty one, and, unrestrained by set- 
tled rules, would tend to throw a painful 
uncertainty over the effect that might be 
given to the most plainly worded statutes, 
and render courts, in reality, the legisla- 
tive power of the State. Instances are 
not wanting to confirm this. Judge-made 
law has overrode the legislative depart- 
ment. It was the boast of Chief Justice 
Pemberton, one of the judges of the despot 
Charles II., and not the worst even of 
those times, that he had entirely outdone 
the Parliament in making law. We think 
that system of jurisprudence best and 
safest which controls most by fixed rules, 
and leaves least to the discretion of the 
judge ; a doctrine constituting one of the 
points of superiority in the common law 
over that system which has been admin- 
istered in France, where authorities had 
no force, and the law of each case was 
what the judge of the case saw fit to 
make it. We admit that the exercise 
of an unlimited discretion may, in a par- 
ticular instance, be attended with a salu- 
tary result; still history informs us that 
it has often been the case that the arbi- 
trary discretion of a judge was the law of 
a tyrant, and warns us that it may be so 
again." Perkins, J., in Spencer v. State, 
6 Ind. 41, 46. " Judge-made law," as the 
phrase is here employed, is that made by 
judicial decisions which construe away 
the meaning of statutes, or find meanings 
in them the legislature never held. The 
phrase is sometimes used as meaning, 
simply, the law that becomes established 
by precedent. The uses and necessity of 
judicial legislation are considered and ex- 
plained at length by Mr. Austin, in his 
Province of Jurisprudence. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 91 

instrument itself, the courts are not at liberty to search for 
elsewhere. 

" Whether we are considering an agreement between parties, 
a statute, or a constitution, with a view to its interpretation, 
the thing which we are to seek is the thought which it expresses. 
To ascertain this, the first resort in all cases is to the natural 
signification of the words employed, in the order of grammatical 
arrangement in which the framers of the instrument have placed 
them. If, thus regarded, the words embody a definite meaning, 
which involves no absurdity and no contradiction between dif- 
ferent parts of the same writing, then that meaning, apparent 
on the face of the instrument, is the one which alone we are at 
liberty to say was intended to be conveyed. In such a case there 
is no room for construction. That which the words declare is 
the meaning of the instrument, and neither courts nor legisla- 
tures have a right to add to or take away from that meaning." 1 

The Whole Instrument to be examined. 

Nor is it lightly to be inferred that any portion of a written 
law is so ambiguous as to require extrinsic aid in its construc- 
tion. Every such instrument is adopted as a whole, and a 
clause which, standing 'by itself, might seem of doubtful import, 
may yet be made plain by comparison with other clauses or 
portions of the same law. It is therefore a very proper rule 
of construction, that the whole is to be examined with a view to 
arriving at the true intention of each part ; and this Sir Edward 
Coke regards as the most natural and genuine method of ex- 
pounding a statute. 2 If any section of a law be intricate, 
obscure, or doubtful, the proper mode of discovering its true 
meaning is by comparing it with the other sections, and finding 
out the sense of one clause by the words or obvious intent of 
another. 3 And in making this comparison it is not to be sup- 
posed that any words have been employed without occasion, or 
without intent that they should have effect as part of the law. 
The rule applicable here is, that effect is to be given, if possible, 

i Newell v. People, 7 N. Y. 9, 97, per Freeholders, &c., 38 N. J. 214; Gold v. 

Johnson, J. ; Chesapeake, &c. Ry. Co. v. Fite, 2 Bax. 237 ; State v. Gammon, 73 

Miller, 19 W. Va. 409. And see Denn v. Mo. 421 ; Broom's Maxims (5th Am. ed.), 

Reid, 10 Pet. 524 ; Greencastle Township 551, marg. 
r. Black, 5 Ind. 566 ; Bartlett v. Morris, 9 2 Co. Lit. 381 a. 

Port. 266; Leonard v. Wiseman, 31 Md. 8 Stowell v. Lord Zouch, Plowd. 365; 

201, per Bartol, Cli. J. ; Way v. Way, 64 Chance v. Marion County, 64 111. 66 ; 

111. 406; McAdoo v. Benbow, 63 N. C. Dyer v. Bayne, 54 Md. 87; Broom's 

461; Hawkins v. Carrol, 50 Miss. 735; Maxims, 621. 
Cearfoss v. State, 42 Md. 403; Douglas v. 



92 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

to the whole instrument, and to every section and clause. If 
different portions seem to conflict, the courts must harmonize 
them, if practicable, and must lean in favor of a construction 
which will render every word operative, rather than one which 
may make some words idle and nugatory. 1 

This rule is applicable with special force to written constitu- 
tions, in which the people will be presumed to have expressed 
themselves in careful and measured terms, corresponding with 
the immense importance of the powers delegated, leaving as 
little as possible to implication. 2 It is scarcely conceivable 
that a case can arise where a court would be justified in declar- 
ing any portion of a written constitution nugatory because of 
ambiguity. One part may qualify another so as to restrict its 
operation, or apply it otherwise than the natural construction 
would require if it stood by itself; but one part is not to be 
allowed to defeat another, if by any reasonable construction the 
two can be made to stand together. 3 

In interpreting clauses we must presume that words have been 
employed in their natural and ordinary meaning. As Marshall, 
Ch. J., says: The framers of the constitution, and the people 
who adopted it, "must be understood to have employed words in 
their natural sense, and to have intended what they have said. " 4 

1 Attorney-General v. Detroit & Erin general rule in the construction of writ- 
Plank Road Co., 2 Mich. 1-38; People v. ings, that, a general intent appearing, it 
Burns, 5 Mich. 114; District Township shall control the particular intent; but 
v. Dubuque, 7 Iowa, 262; Manly v. State, this rule must sometimes give way, and 
7 Md. 135; Parkinson v. State, 14 Md. effect must be given to a particular in- 
184 ; Belleville Railroad Co. v. Gregory, tent plainly expressed in one part of a 
15111.20; Ogden v. Strong, 2 Paine, C. C. constitution, though apparently opposed 
584; Ryegate v. Wardsboro, 30 Vt. 746; to a general intent deduced from other 
Brooks v. Mobile School Commissioners, parts. Warren v. Shuman, 5 Tex. 441. 
31 Ala. 227 ; Den v. Dubois, 16 N. J. 285; In Quick v. Whitewater Township, 7 Ind. 
Den r. Schenck, 8 N. J. 29; Bigelow v. 670, it was said that if two provisions of 
W. Wisconsin R. R., 27 Wis. 478; Gas a written constitution are irreconcilably 
Company v. Wheeling, 8 W. Va. 320; repugnant, that which is last in order of 
Parker v. Savage, 6 Lea, 406 ; Crawfords- time and in local position is to be pre- 
ville, &c. Co. v. Fletcher, 104 Ind. 97, 2 ferred. In Gulf, C. & S. F. Ry. Co. v. 
N. E. 243. See Sams v. King, 18 Fla. Rambolt, 67 Tex. 654, 4 S. W. 356, this 
557. That the title may be considered rule was recognized as a last resort, but 
in order to throw light upon an other- if the last provision is more comprehen- 
wise obscure provision, see Knowlton v. sive and specific, it was held that it 
Moore, 178 U. S. 41, 20 Sup. Ct. Rep. should be given effect on that ground. 
747. See also People v. McElroy, 72 The rule applies to constitutions that 
Mich. 446, 40 N. W. 750, 2 L. R. A. 609, a later amendment operates to repeal an 
and note.] earlier provision inconsistent with it. 

a Wolcott v. Wigton, 7 Ind. 44 ; People People v. Angle, 109 N. Y. 664, 17 N. E. 

v. Purdy, 2 Hill, 31, per Bronson, J. ; 413. 

Greencastle Township v. Black, 5 Ind. * Gibbons r. Ogden, 9 Wheat. 1, 188. 

657 ; Green v. Weller, 32 Miss. 650. See Settle v. Van Evrea, 49 N. Y. 281 ; 

8 People v. Wright, 6 Col. 92. It is a Jenkins v. Ewin, 8 Heisk. 456 ; Way v. 



CH, IV.] 



CONSTRUCTION OF STATE CONSTITUTIONS. 



93 



This is but saying that no forced or unnatural construction is 
to be put upon their language ; and it seems so obvious a truism 
that one expects to see it universally accepted without question; 
but the attempt is made so often by interested subtlety and 
ingenious refinement to induce the courts to force from these 
instruments a meaning which their frarners never held, that it 
frequently becomes necessary to re-declare this fundamental 
maxim. 1 Narrow and technical reasoning is misplaced when 
it is brought to bear upon an instrument framed by the people 
themselves, for themselves, and designed as a chart upon which 
every man, learned and unlearned, may be able to trace the 
leading principles of government. 

But it must not be forgotten, in construing our constitutions, 
that in many particulars they are but the legitimate successors 
of the great charters of English liberty, whose provisions 
declaratory of the rights of the subject have acquired a well- 
understood meaning, which the people must be supposed to have 
had in view in adopting them. We cannot understand these 



Way, 64 111. 406; Stuart v. Hamilton, 66 
111. 253; Hale v. Everett, 53 N. H. 9; 
State v. Brewster, 42 N. J. 125 ; Carpenter 
v. People, 8 Col. 116, 5 Pac. 828. 

1 State v. Mace, 5 Md. 337 ; Manly v. 
State, 7 Md. 135 ; Green v. Weller, 32 
Miss. 650 ; Greencastle Township v. 
Black, 5 Ind. 566; People v. N. Y. Cen- 
tral Railroad Co., 34 Barb. 123, and 24 
N. Y. 485; Story on Const. 453. " The 
true sense in which words are used in a 
statute is to be ascertained generally by 
taking them in their ordinary and popu- 
lar signification, or, if they be terms of 
art, in their technical signification. But 
it is also a cardinal rule of exposition, 
that the intention is to be deduced from 
the whole and every part of the statute, 
taken and compared together, from the 
words of the context, and such a con- 
struction adopted as will best effectuate 
the intention of the lawgiver. One part 
is referred to in order to help the con- 
struction of another, and the intent of 
the legislature is not to be collected from 
any particular expression, but from a 
general view of the whole act. Dwarris, 
658, 698, 702, 703. And when it appears 
that the framers have used a word in a 
particular sense generally in the act, it 
will be presumed that it was intended to 
be used in the same sense throughout 
the act, unless an intention to give it a 



different signification plainly appears in 
the particular part of the act alleged to be 
an exception to the general meaning indi- 
cated. Dwarris, 704 et seq. When words 
are used to which the legislature has 
given a plain and definite import in the 
act, it would be dangerous to put upon 
them a construction which would amount 
to holding that the legislature did not 
mean what it has expressed. It follows 
from these principles that the statute 
itself furnishes the best means of its own 
exposition; and if the sense in which 
words were intended to be used can be 
clearly ascertained from all its parts and 
provisions, the intention thus indicated 
shall prevail, without resorting to other 
means of aiding in the construction. And 
these familiar rules of construction apply 
with at least as much force to the con- 
struction of written constitutions as to 
statutes ; the former being presumed to 
be framed with much greater care and 
consideration than the latter." Green v. 
Weller, 32 Miss. 650, 678. Words re- 
enacted after they have acquired a set- 
tled meaning will be understood in that" 
meaning. Fulmer v. Commonwealth, 97 
Penn. St. 503. The argument ab incon- 
venienti cannot be suffered to influence 
the courts by construction to prevent 
the evident intention. Chance v. Marion 
County, 64 111. 66. 



94 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

provisions unless we understand their history; and when we 
find them expressed in technical words, and words of art, we 
must suppose these words to be employed in their technical 
sense. When the Constitution speaks of an ex post facto law, 
it means a law technically known by that designation; the 
meaning of the phrase having become defined in the history of 
constitutional law, and being so familiar to the people that it is 
not necessary to employ language of a more popular character to 
designate it. The technical sense in these cases is the sense 
popularly understood, because that is the sense fixed upon the 
words in legal and constitutional history where they have been 
employed for the protection of popular rights. 1 

The Common Law to be kept in View. 

It is also a very reasonable rule that a State constitution shall 
be understood and construed in the light and by the assistance 
of the common law, and with the fact in view that its rules are 
still left in force. By this we do not mean that the common 
law is to control the constitution, or that the latter is to be 
warped and perverted in its meaning in order that no inroads, 
or as few as possible, may be made in the system of common- 
law rules, but only that for its definitions we are to draw from 
that great fountain, and that in judging what it means, we are 
to keep in mind that it is not the beginning of law for the State, 
but that it assumes the existence of a well-understood system 
which is still to remain in force and be administered, but under 

1 See Jenkins v. Ewin, 8 Heisk. 476. Kent, of which the thirteen provinces 
It is quite possible, however, in applying were a part and parcel ; for in their char- 
constitutional maxims, to overlook en- ters they were to hold of the manor of 
tirely the reason upon which they rest, Greenwich in Kent, of which manor they 
and " considering merely the letter, go were by charter to be parcel ! The opin- 
but skin deep into the meaning." On the ion, it is said, " raised a very loud laugh," 
great debate on the motion for withdraw- but Sir James continued to support it, 
ing the confidence of Parliament from and concluded by declaring that he would 
the ministers, after the surrender of Corn- give the motion a hearty negative. Thus 
wallis, a debate which called out the would he have settled a great principle of 
best abilities of Fox and Pitt as well as constitutional right, for which a seven 
of the ministry, and necessarily led to the years' bloody war had been waged, by 
discussion of the primary principle in putting it in the form of a meaningless 
free government, that taxation and repre- legal fiction. Hansard's Debates, Vol. 
sentation shall go together, Sir James XXII. p. 1184. Lord Mahon, following 
Mariott rose, and with great gravity pro- Lord Campbell, refers the origin of this 
ceedecl to say, that if taxation and repre- wonderful argument to Mr. Hardinge, a 
sentation were to go hand in hand, then Welsh judge, and nephew of Lord Cam- 
Britain had an undoubted right to tax den; 7 Mahon's Hist. 139. He was said 
America, because she was represented in to have been a good lawyer, but must 
the British Parliament. She was repre- have read the history of his country to 
eented by the members for the county of little purpose. 



CH. IV.] 



CONSTRUCTION OF STATE CONSTITUTIONS. 



95 



such limitations and restrictions as that instrument imposes. 1 
It is a maxim with the courts that statutes in derogation of the 
common law shall be construed strictly, 2 a maxim which we 
fear is sometimes perverted to the overthrow of the legislative 
intent; but there can seldom be either propriety or safety in 
applying this maxim to. constitutions. When these instruments 
assume to make any change in the common law, the change 
designed is generally a radical one ; but as they do not go 
minutely into particulars, as do statutes, it will sometimes be 
easy to defeat a provision, if courts are at liberty to say that 
they will presume against any intention to alter the common 
law further than is expressly declared. A reasonable construc- 
tion is what such an instrument demands and should receive; 
and the real question is, what the people meant, and not how 
meaningless their words can be made by the application of 
arbitrary rules. 3 

As a general thing, it is to be supposed that the same word 
is used in the same sense wherever it occurs in a constitution. 4 



1 State v. Noble, 118 Ind. 350, 21 N. E. 
Kep. 244. 

2 Broom's Maxims, 33; Sedg. on Stat. 
& Const. Law, 313. See Harrison v. 
Leach, 4 W. Va. 383. 

3 Under a clause of the constitution 
of Michigan which provided that " the 
real and personal estate of every female 
acquired before marriage, and all property 
to which she may afterwards become en- 
titled, by gift, grant, inheritance, or de- 
vise, shall be and remain the estate and 
property of such female, and shall not be 
liable for the debts, obligations, or en- 
gagements of her husband, and may be 
devised or bequeathed by her as if she 
were unmarried," it was held that a mar- 
ried woman could not sell her personal 
property without the consent of her hus- 
band, inasmuch as the power to do so was 
not expressly conferred, and the clause, 
being in derogation of the common law, 
was not to be extended by construction. 
Brown v. Fifield, 4 Mich. 322. The dan- 
ger of applying arbitrary rules in the 
construction of constitutional principles 
might well, as it seems to us, be illus- 
trated by this case. For while on the 
one hand it might be contended that, as a 
provision in derogation of the common 
law, the one quoted should receive a 
strict construction, on the other hand it 
might be insisted with perhaps equal rea- 



son that, as a remedial provision, in 
furtherance of natural right and justice, 
it should be liberally construed, to effect 
the beneficial purpose had in view. Thus 
arbitrary rules, of directly opposite ten- 
dency and force, would be contending for 
the mastery in the same case. The sub- 
sequent decisions under the same provi- 
sion do not appear to have followed this 
lead. See White v. Zane, 10 Mich. 333 ; 
McKee v. Wilcox, 11 Mich. 358; Farr v. 
Sherman, 11 Mich. 33; Watson . Thur- 
ber, 11 Mich. 457; Burdeno v. Amperse, 
14 Mich. 91 ; Tong v. Marvin, 15 Mich. 60; 
Tillman v. Shackleton, 15 Mich. 447; 
Devries v. Conklin, 22 Mich. 255; Rankin 
v. West, 25 Mich. 195. The common law 
is certainly to be kept in view in the 
interpretation of such a clause, since 
otherwise we do not ascertain the evil 
designed to be remedied, and perhaps are 
not able fully to understand and explain 
the terms employed ; but it is to be 
looked at with a view to the real intent, 
rather than for the purpose of arbitrarily 
restraining it. See Bishop, Law of Mar- 
ried Women, 18-20 and cases cited ; 
McGinnis v. State, 9 Humph. 43; State 
v. Lash, 16 N. J. 380, 32 Am. Dec, 397; 
Cadwallader v. Harris, 76 111. 370; Moyer 
v. Slate Co., 71 Pa. St. 293. 

* Brien v. Williamson, 8 Miss. 14. If 
in one place in a statute the meaning of a 



96 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

Here again, however, great caution must be observed in applying 
an arbitrary rule ; for, as Mr. Justice Story has well observed: 
" It does not follow, either logically or grammatically, that 
because a word is found in one connection in the Constitution 
with a definite sense, therefore the same sense is to be adopted 
in every other connection in which it occurs. This would be 
to suppose that the framers weighed only the force of single 
words, as philologists or critics, and not whole clauses and 
objects, as statesmen and practical reasoners. And yet nothing 
has been more common than to subject the Constitution to this 
narrow and mischievous criticism. 1 Men of ingenious and 
subtle minds, who seek for symmetry and harmony in language, 
having found in the Constitution a word used in some sense 
which falls in with their favorite theory of interpreting it, have 
made that the standard by which to measure its use in every 
other part of the instrument. They have thus stretched it, as 
it were, on the bed of Procrustes, lopping off its meaning when 
it seemed too large for their purposes, and extending it when it 
seemed too short. They have thus distorted it to the most 
unnatural shapes, and crippled where they have sought only to 
adjust its proportions according to their own opinions." 2 And 
he gives many instances where, in the national Constitution, it 
is very manifest the same word is employed in different mean- 
ings. So that, while the rule may be sound as one of presump- 
tion merely, its force is but slight, and it must readily give way 
to a different intent appearing in the instrument. 

Where a constitution is revised or amended, (a) the new pro- 
visions come into operation at the same moment that those they 
take the place of cease to be of force; and if the new instrument 
re-enacts in the same words provisions which it supersedes, it 
is a reasonable presumption that the purpose was not to change 

word or phrase is clear, it will generally l See remarks of Johnson, J., in Ogden. 

be taken in the same sense throughout v. Saunders, 12 Wheat. 213, '290. 

the act. Rhodes v. Weldy, 46 Ohio St. 2 Story on Const. 454. And see 

234, 20 N. E. Rep. 461. Cherokee Nation v. Georgia, 5 Pet 1, 19. 

(a) [[Whether the attempt to amend has* sufficiently complied with the constitu- 
tional requirements of formality in amending the constitution is a question for the 
courts, and that the legislature has declared the amendment adopted is immaterial. 
State v. Powell, 77 Miss. 543, 27 So. 927, 48 L. R. A. 652. That an amendment must 
be complete and not conditional and dependent, for its force, upon the subsequent 
acts and discretion of certain officers, see Livermore v. Waite, 102 Cal. 113, 36 Pac. 
424, 25 L. R. A. 312, in which an attempted amendment relating to the relocation of 
the State capitol was declared invalid. All preliminary steps prescribed for amend- 
ment of constitution must be taken in full compliance with requirements. State v. 
Tooker, 15 Mont. 8, 37 Pac. 840, 25 L. R. A. 560 ; State v. Brookhart, 113 Iowa, 250, 
84 N. W. 1064.] 



CH. IV.] 



CONSTRUCTION OF STATE CONSTITUTIONS. 



97 



the law in those particulars, but to continue it in uninterrupted 
operation. This is the rule in the case of statutes, 1 and it some- 
times becomes important, where rights had accrued before the 
revision or amendment took place. Its application to the case 
of an amended or revised constitution would seem to be unques- 
tionable. 

Operation to be Prospective. 

We shall venture also to express the opinion that a constitution 
should operate prospectively only, unless the words employed show 
a clear indention that it should have a retrospective effect. This 
is the rule in regard to statutes, and it is " one of such obvious 
convenience and justice, that it must always be adhered to in 
the construction of statutes, unless in cases where there is 
something on the face of the enactment putting it beyond doubt 
that the legislature meant it to operate retrospectively. " 2 Retro- 
spective legislation, except when designed to cure formal defects, 
or otherwise operate remedially, is commonly objectionable in 
principle, and apt to result in injustice; and it is a sound rule 
of construction which refuses lightly to imply an intent to enact 
it. And we are aware of no reasons applicable to ordinary 
legislation which do not, upon this point, apply equally well to 
constitutions. 3 



> Laude v. Chicago, &c. R. R. Co., 33 
Wis. 640; Gilkey v. Cook, 60 Wis. 133, 
18 N. W. 639. Blackwood v. Van Vleit, 
30 Mich. 118. 

2 Moon v. Durden, 2 Exch. 22. See 
Dash v. Van Kleek, 7 Johns. 477 ; Brown 
v. Wilt-ox, 22 Miss. 127; Price v. Mott, 
62 Pa. St. 315; Broom's Maxims, 28; 
post, p. 629 and note. 

8 In Allbyer v. State, 10 Ohio St. 588, 
a question arose under the provision of 
the constitution that "all laws of a gen- 
eral nature shall have a uniform operation 
throughout the State." Another clause 
provided that all laws then in force, not 
inconsistent with the constitution, should 
continue in force until amended or re- 
pealed. Allbyer was convicted and sen- 
tenced to imprisonment under a crimes 
act previously in force applicable to Ham- 
ilton County only, and the question was, 
whether that act was not inconsistent with 
the provision above quoted, and therefore 
repealed by it. The court held that the 
provision quoted evidently had regard to 
future and not to past legislation, and 
therefore was not repealed. A similar 



decision was made in State v. Barbee, 3 
Ind. 258; Evans . Phillipi, 117 Pa. St. 
226, 11 All. 630; Pecot v. Police Jury, 
41 La. Ann. 706, 6 So. 077. So as to 
the effect of a provision allowing com- 
pensation for property injured, but not 
taken, in course of public improvements. 
Folkenson v. Easton, 116 Pa. St. 523, 8 
Atl. 869. See also State v. Thompson, 
2 Kan. 432; Slack v. Maysville, &c. R. R, 
Co., 13 B. Monr. 1 ; State v. Macon County 
Court, 41 Mo. 453 ; N. C. Coal Co. v. G. C. 
Coal & Iron Co., 37 Md. 657. In Matter 
of Oliver Lee & Co.'s Bank, 21 N. Y. 
9, 12, Denio, J., says : " The rule laid 
down in Dash v. Van Kleek, 7 Johns. 477, 
and other cases of that class, by which 
the courts are admonished to avoid, if 
possible, such an interpretation as would 
give a statute a retrospective operation, 
has but a limited application, if any, to 
the construction of a constitution. When, 
therefore, we read in the provision under 
consideration, that the stockholders of 
every banking corporation shall be sub- 
ject to a certain liability, we are to attrib- 
ute to the language its natural meaning, 



98 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

Implications. 

The implications from the provisions of a constitution are 
sometimes exceedingly important, and have large influence upon 
its construction. In regard to the Constitution of the United 
States the rule has been laid down, that where a general power 
is conferred or duty enjoined, every particular power necessary 
for the exercise of the one or the performance of the other is 
also conferred. 1 The same rule has been applied to the State 
constitution, with an important modification, by the Supreme 
Court of Illinois. "That other powers than those -expressly 
granted may be, and often are, conferred by implication, is too 
well settled to be doubted. Under every constitution the doc- 
trine of implication must be resorted to, in order to carry out 
the general grants of power. A constitution cannot from its 
very nature enter into a minute specification of all the minor 
powers naturally and obviously included in it and flowing from 
the great and important ones which are expressly granted. It 
is therefore established as a general rule, that when a constitu- 
tion gives a general power, or enjoins a duty, it also gives, by 
implication, every particular power necessary for the exercise 
of the one or the performance of the other. The implication 
under this rule, however, must be a necessary, not a conjectural 
or argumentative one. And it is further modified by another 
rule, that where the means for the exercise of a granted power 
are given, no other or different means can be implied, as being 
more effectual or convenient. " 2 The rule applies to the exer- 
cise of power by all departments and all officers, and will be 
touched upon incid-entally hereafter. 

Akin to this is the rule that " where the power is granted in 
general terms, the power is to be construed as coextensive with 
the terms, unless some clear restriction upon it is deducible 
[expressly or by implication] from the context." 3 This rule 
has been so frequently applied as a restraint upon legislative 
encroachment upon the grant of power to the judiciary, that we 

without inquiring whether private inter- Northwestern Fertilizing Co. v. Hyde 

ests may not be prejudiced by such a Park, 70 111. 634. 

sweeping mandate." The remark was 2 Field v. People, 3 111. 79, 83. See 

obiter, as it was found that enough ap- Fletcher v. Oliver, 25 Ark. 289. In 

peared in the constitution to show clearly Nevada it has been held that a constitu- 

that it was intended to apply to existing, tional provision that the counties shall 

as well as to subsequently created, bank- provide for their paupers will preclude a 

ing institutions. State asylum for the poor. State v. 

1 Story on Const. 430. See also Hallock, 14 Nev. 202, 33 Am. Rep. 559. 
United States v. Fisher, 2 Cranch, 858; 8 Story on Const. 424-426. See Du 

McCulloch v. Maryland, 4 Wheat. 316 ; Page County v. Jenks, 65 111. 275. 



CH. IV.] 



CONSTRUCTION OF STATE CONSTITUTIONS. 



99 



shall content ourselves in this place with a reference to the cases 
collected upon his subject and given in another chapter. 1 

Another rule of construction is, that when the constitution 
defines the circumstances under which a right may be exercised 
or a penalty imposed, the specification is an implied prohibition 
against legislative interference to add to the condition, or to 
extend the penalty to other cases. On this ground it has been 
held by the Supreme Court of Maryland, that where the consti- 
tution defines the qualifications of an officer, it is not in the 
power of the legislature to change or superadd to them, unless 
the power to do so is expressly or by necessary implication con- 
ferred by the constitution itself. 2 Other cases recognizing the 
same principle are referred to in the note. 3 



1 See post, pp. 124, 162. 

2 Thomas v. Owens, 4 Md. 189. And 
see Barker v. People, 3 Cow. 686 ; Matter 
of Dorsey, 7 Port. 293. 

8 The legislature cannot add to the 
constitutional qualifications of voters : Ri- 
eon v. Fair, 24 Ark. 161 ; St. Joseph, &c. 
II. R. Co. v. Buchanan County Court, 39 
Mo. 485 ; State v. Williams, 5 Wis. 308 ; 
State v Baker, 38 Wis. 71 ; Monroe v. Col- 
lins, 17 Ohio St. 665; Stat.e v. Symonds, 
67 Me. 148; State v. Staten, 6 Cold. 233; 
Davies v. McKeeby, 5 Nev. 369 ; McCaf- 
ferty v. Gayer, 59 Pa. St. 109; Quinn 
v. State, 35 Ind. 485 ; Clayton v. Harris, 
7 Nev. 64 ; Randolph v. Good, 3 W. Va. 
551 ; [Morris v. Powell, 125 Ind. 281, 25 
N. E. 221, 9 L. R. A. 326. Nor diminish 
them : Allison v. Blake, 57 N. J. L. 6, 
29 Atl. 417, 25 L. R. A. 480, and note ; 
except in the case of school officers and 
other officers not provided for in the 
Constitution. Plummer v. Yost, 144 111. 
68, 33 N. E. 191, 19 L. R. A. 110;] nor 
of an officer: Feibleman v. State, 98 Ind. 
616; nor shorten the constitutional term 
of an office : Howard v. State, 10 Ind. 
99; Cotten v. Ellis, 7 Jones, N. C. 545 ; 
State v. Askew, 48 Ark. 82, 2 S. W. 
349 ; nor practically abolish the office by 
repealing provision for salary: Reid v. 
Smoulter, 128 Pa. 324, 6 L. R. A. 517, 
18 Atl. Rep. 445; nor extend the consti- 
tutional term : People v. Bull, 46 N. Y. 
57; Goodin v. Thoman, 10 Kan. 191; 
State ?>. Brewster, 44 Ohio St. 589, 6 
N. E. 653 ; fJKahn v. Sutro, 1 14 Cal. 316, 
46 Pac. 87, 33 L. R. A. 620; see also Hill 
v. Slade, 41 Md. 640, 48 Atl. 64 (Nov. 15, 
1900);] but see Jordan v. Bailey, 37 



Minn. 174, 33 N. W. 778 ; nor add to the 
constitutional grounds for removing an 
officer: Lowe v. Commonwealth, 3 Met. 
(Ky.) 237; Brown v. Grover, 6 Bush, 1, 
as by enacting that intoxication while 
discharging his duties shall be deemed 
misfeasance in office, Com. v. Williams, 
79 Ky. 42; but see McComas v. Krug, 
81 Ind. 327 ; nor change the compensa- 
tion prescribed by the constitution : King 
v. Hunter, 65 N. C. 603 ; see also, on 
these questions, post, p. 388, note ; nor 
provide for the choice of officers a dif- 
ferent mode from that prescribed by 
the constitution : People v. Raymond, 37 
N. Y.428 ; Devoy v. New York, 35 Barb. 
264; 22 How. Pr. 226; People v. Blake, 
49 Barb. 9 ; People v. Albertson, 55 N. Y. 
50; Opinions of Justices, 117 Mass. 603; 
State v. Goldstucker, 40 Wis. 124; see 
post, p. 388, note. A legislative extension 
of an elective office is void as applied to 
incumbents. People v. McKinney, 52 
N. Y. 374. fJBut where the constitution 
contains no prohibition, the legislature 
may prescribe the qualifications of voters 
at municipal elections. Hanna v. Young, 
84 Md. 179, 35 Atl. 674, 34 L. R. A. 55. 
And of officers : State v. McCallister, 38 
W. Va. 485, 18 S. E. 770, 24 L. R. A. 
343. Where the constitution limits the 
term, appointee under statute providing 
for holding during good behavior can- 
not hold beyond constitutional term. 
Neumeyer v. Krakel, Ky. , 62 S. W. 
618 (Apr. 25, 1901).] 

It is not unconstitutional to allow the 
governor to supply temporary vacancies 
in offices which under the constitution 
are elective. Sprague v. Brown, 40 Wis. 



100 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

The Light which the Purpose to be accomplished may afford in 

Construction. 

The considerations thus far suggested are such as have no 
regard to extrinsic circumstances, but are those by the aid of 
which we seek to arrive at the meaning of the constitution 
from an examination of the words employed. It is possible, 
however, that after we shall have made use of all the lights 
which the instrument itself affords, there may still be doubts 
to clear up and ambiguities to explain. Then, and only then, 
are we warranted in seeking elsewhere for aid. We are not to 
import difficulties into a constitution, by a consideration of 
extrinsic facts, when none appear upon its face. If, however, 
a difficulty really exists, which an examination of every part of 
the instrument does not enable us to remove, there are certain 
extrinsic aids which may be resorted to, and which are more or 
less satisfactory in the light they afford. Among these aids is 
a contemplation of the object to be accomplished or the mischief 
designed to be remedied or guarded against by the clause in which 
the ambiguity is met with. 1 "When we once know the reason 
which alone determined the will of the lawmakers, we ought to 
interpret and apply the words used in a manner suitable and 
consonant to that reason, and as will be best calculated to 
effectuate the intent. Great caution should always be observed 
in the application of this rule to particular given cases ; that is, 
we ought always to be certain that we do know, and have 
actually ascertained, the true and only reason which induced 
the act. It is never allowable to indulge in vague and uncertain 
conjecture, or in supposed reasons and views of the framers of 
an act, where there are none known with any degree of cer- 
tainty." 2 The prior state of the law will sometimes furnish the 
clue to the real meaning of the ambiguous provision, 3 and it is 

612. But such vacancy does not arise by A. 613. Where the term fixed by statute 

mere failure to hold the election. Ijams is unconstitutional, the tenure is at the 

v. Duvall, 85 Md. 252, 36 Atl. 819, 36 L. will of the appointing power. Lewis v. 

R. A. 127. Enumeration in constitution Lewelling, 63 Kan. 201, 36 Pac. 351, 23 

of certain modes in which vacancies arise L. R. A. 510.] 

does not prevent legislative certain of 1 Alexander v. Worthington, 5 Md. 

other modes. State v. Lansing, 46 Neb. 471 ; District Township v. Dubuque, 7 

514, 64 N. W. 1104, 35 L. R. A. 124. Ill- Iowa, 262. See Smith v. People, 47 N. 

ness of governor which disables him to Y. 330; People v. Potter, 47 N. Y. 375 ; 

perform his duties is such vacancy as Ball v. Chadwick, 46 111. 28; Sawyer v. 

authorizes the officer designated by the Insurance Co , 46 Vt. 697. 
constitution to assume the powers and 2 Smith on Stat. and Const. Construc- 

discharge the duties of the governor until tion, 634. See also remarks of Branson, 

the disability is removed. Barnard v. Tag- J., in People v. Purdy, 2 Hill, 35-37. 
gart, 66 N. H. 362, 29 Atl. 1027, 25 L. R. 8 Baltimore v. State, 15 Md. 376; 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 101 

especially important to look into it if the constitution is the 
successor to another, and in the particular in question essential 
changes have apparently been made. 1 



Proceedings of the Constitutional Convention. 

When the inquiry is directed to ascertaining the mischief 
designed to be remedied, or the purpose sought to be accom- 
plished by a particular provision, it may be proper to examine 
the proceedings of the convention which framed the instrument. 2 
Where the proceedings clearly point out the purpose of the pro- 
vision, the aid will be valuable and satisfactory ; but where the 
question is one of abstract meaning, it will be difficult to derive 
from this source much reliable assistance in interpretation. 
Every member of such a convention acts upon such motives and 
reasons as influence him personally, and the motions and debates 
do not necessarily indicate the purpose of a majority of a con- 
vention in adopting a particular clause. It is quite possible for 
a clause to appear so clear and unambiguous to the members of 
a convention as to require neither discussion nor illustration; 
and the few remarks made concerning it in the convention might 
have a plain tendency to lead directly away from the meaning in 
the minds of the majority. It is equally possible for a part of 
the members to accept a clause in one sense and a part in 
another. And even if we were certain we had attained to the 
meaning of the convention, it is by no means to be allowed a 
controlling force, especially if that meaning appears not to be 
the one which the words would most naturally and obviously 
convey. 3 For as the constitution does not derive its force from 
the convention which framed, but from the people who ratified 
it, the intent to be arrived at is that of the people, and it is not 
to be supposed that they have looked for any dark or abstruse 
meaning in the words employed, but rather that they have 
accepted them in the sense most obvious to the common under- 
standing, and ratified the instrument in the belief that that was 

Henry v. Tilson, 19 Vt. 447; Hamilton v. son, J., People v. Purdy, 2 Hill, 31 ; Peo- 

St. Louis County Court, 16 Mo. 3 ; pie v. N. Y. Central Railroad Co., 24 N. 

People v. Gies, 25 Mich. 83; Servis v. Y. 485. See State v. Kennon, 7 Ohio St. 

Beatty, 32 Miss. 52 ; Bandel v. Isaac, 13 546 ; Wisconsin Cent. R. R. Co. v. Taylor 

Md 202; Story on Const. 428. Co., 52 Wis. 37, 8 N. W. 833; State v. 

1 People v. Blodgett, 13 Mich. 127, Barnes, 24 Fla. 29, 3 So. 433. 

147. 3 Taylor v. Taylor, 10 Minn. 107. 

2 Per Waliuortk, Chancellor, Coutant And see Eakin v. Raub, 12 S. & R. 352 ; 
v. People, 11 Wend. 611, 518, and Clark Aldridge v. Williams, 3 How. 1; Stater. 
v. People, 26 Wend. 599, 602 ; per Bron- Doron, 5 Nev. 399. 



102 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

the sense designed to be conveyed. 1 These proceedings therefore 
are less conclusive of the proper construction of the instrument 
than are legislative proceedings of the proper construction of a 
statute; since in the latter case it is the intent of the legislature 
we seek, while in the former we are endeavoring to arrive at the 
intent of the people through the discussions and deliberations of 
their representatives. The history of the calling of the conven- 
tion, the causes which led to it, and the discussions and issues 
before the people at the time of the election of the delegates, 
will sometimes be quite as instructive and satisfactory as any- 
thing to be gathered from the proceedings of the convention. 2 

Contemporaneous and Practical Construction. 

An important question which now suggests itself is this: How 
far the contemporaneous interpretation, or the subsequent prac- 
tical construction of any particular provision of the constitution, 
is to have weight with the courts when the time arrives at which 
a judicial decision becomes necessary. Contemporaneous inter- 
pretation may indicate merely the understanding with which the 
people received it at the time, or it may be accompanied by acts 
done in putting the instrument in operation, and which neces- 
sarily assume that it is to be construed in a particular way. In 
the first case it can have very little force, because the evidences 
of the public understanding, when nothing has been done under 
the provision in question, must always of necessity be vague and 
indecisive. But where there has been a practical construction, 
which has been acquiesced in for a considerable period, con- 
siderations in favor of adhering to this construction sometimes 
present themselves to the courts with a plausibility and force 
which it is not easy to resist. Indeed, where a particular con- 
struction has been generally accepted as correct, and especially 
when this has occurred contemporaneously with the adoption of 
the constitution, and by those who had opportunity to under- 
stand the intention of the instrument, it is not to be denied that 
a strong presumption exists that the construction rightly inter- 
prets the intention. And where this has been given by officers 
in the discharge of their official duty, and rights have accrued 
in reliance upon it, which would be divested by a decision that 
the construction was erroneous, the argument ab inconvenienti 
is sometimes allowed to have very great weight. 

1 State v. Mace, 5 Md. 337 ; Manly v. * See People v. Harding, 63 Mich. 481, 
State, 7 Md. 135 ; Hills v. Chicago, 60 111. 19 N. W. 155. 
86 ; Beardstown v. Virginia, 76 111. 34. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 103 

The Supreme Court of the United States has had frequent 
occasion to consider this question. In Stuart v. Laird, 1 decided 
in 1803, that court sustained the authority of its members to 
sit as circuit judges on the ground of a practical construction, 
commencing with the organization of the government. 

In Martin v. Hunter's Lessee, 2 Justice Story, after holding 
that the appellate power of the United States extends to cases 
pending in the State courts, and that the 25th section of the 
Judiciary Act, which authorized its exercise, was supported 
by the letter and spirit of the Constitution, proceeds to say: 
" Strong as this conclusion stands upon the general language of 
the Constitution, it may still derive support from other sources. 
It is an historical fact, that this exposition of the Constitution, 
extending its appellate power to State courts, was, previous to 
its adoption, uniformly and publicly avowed by its friends, and 
admitted by its enemies, as the basis of their respective reason- 
ings both in and out of the State conventions. It is an historical 
fact, that at the time when the Judiciary Act was submitted to 
the deliberations of the First Congress, composed, as it was, not 
only of men of great learning and ability, but of men who had 
acted a principal part in framing, supporting, or opposing that 
Constitution, the same exposition was explicitly declared and 
admitted by the friends and by the opponents of that system. 
It is an historical fact, that the Supreme Court of the United 
States have from time to time sustained this appellate jurisdic- 
tion in a great variety of cases, brought from the tribunals of 
many of the most important States in the Union, and that no 
State tribunal has ever breathed a judicial doubt on the subject, 
or declined to obey the mandate of the Supreme Court, until the 
present occasion. This weight of contemporaneous exposition 
by all parties, this acquiescence by enlightened State courts, and 
these judicial decisions of the Supreme Court through so long a 
period, do, as we think, place the doctrine upon a foundation 
of authority which cannot be shaken without delivering over 
the subject to perpetual and irremediable doubts." The same 
doctrine was subsequently supported by Chief Justice Marshall 
in a case involving the same point, and in which he says that 
" great weight has always been attached, and very rightly 
attached, to contemporaneous exposition." 3 

In Bank of United States v. Halstead 4 the question was made, 
whether the laws of the United States authorizing the courts of 

1 1 Cranch, 299. Cohens v. Virginia, 6 Wheat. 264. 

2 1 Wheat. 304, 861. See Story on 418. 

Const. 405-408. * 10 Wheat. 61, 63. 



104 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

the Union so to alter the form of process of execution used in 
the Supreme Courts of the States in September, 1789, as to 
subject to execution lands and other property not thus subject 
by the State laws in force at that time, were constitutional ; and 
Mr. Justice Thompson, in language similar to that of Chief 
Justice Marshall in the preceding case, says: "If any doubt 
existed whether the act of 1792 vests such power in the courts, 
or with respect to its constitutionality, the practical construction 
given to it ought to have great weight in determining both ques- 
tions." And Mr. Justice Johnson assigns a reason for this in a 
subsequent case: "Every candid mind will admit that this is a 
very different thing from contending that the frequent repetition 
of wrong will create a right. It proceeds upon the presumption 
that the contemporaries of the Constitution have claims to our 
deference on the question of right, because they had the best 
opportunities of informing themselves of the understanding of 
the framers of the Constitution, and of the sense put upon it by 
the people when it was adopted by them." 1 Like views have 
been expressed by Chief Justice Waite in a recent decision. 2 

Great deference has been paid in all cases to the action of the 
executive department, where its officers have been called upon, 
under the responsibilities of their official oaths, to inaugurate a 
new system, and where it is to be presumed they have carefully 
and conscientiously weighed all considerations, and endeavored 
to keep within the letter and the spirit of the Constitution. If 
the question involved is really one of doubt, the force of their 
judgment, especially in view of the injurious consequences that 
may result from disregarding it, is fairly entitled to turn the 
scale in the judicial mind. 3 

1 Ogden v. Saunders, 12 Wheat. 290. Farmers' and Mechanics' Bank v. Smith, 
See Pike v. Megoun, 44 Mo. 491 ; State v. 3 S. & It. 63 ; Norris v. Clymer, 2 Pa. St. 
Parkinson, 5 Nev. 15. 277; Moers v. City of Reading, 21 Pa. St. 

2 Minor v. Happersett, 21 Wall. 162. 188; Washington v. Page, 4 Cal. 838; 
To like effect is Ex parte Reynolds, 12 S. Surgett v. Lapice, 8 How. 48; Bissell v. 
W. Rep. 570 (Ark.). And see Collins v. Penrose, 8 How. 317; Troup v. Haight, 
Henderson, 11 Bush, 74,92. Hopk. 239; United States v. Gilmore, 8 

8 Union Insurance Co. v. Hoge, 21 Wall. 330; Brown v. United States, 113 

How. 35, 66; Edward's Lessee v. Darby, U. S. 568, 5 Sup. Ct. Rep. 648; Hedge- 

12 Wheat. 206; Hughes v. Hughes, 4 T. B. cock v. Davis, 64 N. C. 650; Lafayette, 

Monr. 42; Chambers v.Fisk, 22 Tex. 504; &c. R. R. Co. v. Geiger, 34 Ind. 185; 

Britton v. Ferry, 14 Mich. 53 ; Bay City Bunn v. People, 45 111. 397 ; Scanlan 

v. State Treasurer, 23 Mich. 409 ; West- v. Childs, 33 Wis. 663; Faribault v. 

brook v. Miller, 56 Mich. 148, 22 N. W Misener, 20 Minn. 396; State v. Glenn, 

256; Plummer v. Plummer, 37 Miss. 185; 18 Nev. 34, 1 Pac. 186; State v. Kelsey, 

Burgess v. Pue, 2 Gill, 11 ; State v. May- 44 N. J. L. 1 ; United States v. Ala. G. 

hew, 2 Gill, 487 ; Baltimore v. State, 15 Southern R. Co., 142 U. S. 615, 12 Sup. 

Md. 876 ; Coutant v. People, 11 Wend. Ct. Rep. 306 ; French v. State, 141 Ind. 

611; People o. Dayton, 55 N. Y. 367; 618, 41 N. E.2; 29 L. R. A. HSfj Where 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 105 

Where, however, no ambiguity or doubt appears in the law, 
we think the same rule obtains here as in other cases, that the 
court should confine its attention to the law, and not allow 
extrinsic circumstances to introduce a difficulty where the lan- 
guage is plain. To allow force to a practical construction in 
such a case would be to suffer manifest perversions to defeat the 
evident purpose of the lawmakers. "Contemporary construc- 
tion . . . can never abrogate the text ; it can never fritter away 
its obvious sense; it can never narrow down its true limitations; 
it can never enlarge its natural boundaries. " 1 While we con- 
ceive this to be the true and only safe rule, we shall be obliged 
to confess that some of the cases appear, on first reading, not to 
have observed these limitations. In the case of Stuart v. Laird, 2 
above referred to, the practical construction was regarded as 
conclusive. To the objection that the judges of the Supreme 
Court had no right to sit as circuit judges, the court say : " It 
is sufficient to observe that practice and acquiescence under it 
for a period of several years, commencing with the organization 
of the judicial system, affords an irresistible answer, and has 
indeed fixed the construction. It is a contemporary interpreta- 
tion of the most forcible nature. This practical exposition is 
too strong and obstinate to be shaken or controlled. Of course 
the question is at rest, and ought not now to be disturbed." 
This is certainly very strong language ; but language very similar 
in character was used by the Supreme Court of Massachusetts 
in one case where large and valuable estates depended upon a 
particular construction of a statute, and very great mischief 

the constitution lias been construed by Fed. Rep. 93. [TJpon whether or not an 

the political departments of the govern- executive officer may raise the question 

ment in its application to a political ques- of constitutionality of an act which casts 

tion, the courts will not only give great ministerial duties upon him, as a defence 

consideration to their action, but will gen- to a mandamus proceeding to compel per- 

erally follow the construction implicitly, formance of such duties, see State v. 

People v. Supervisors of La Salle, 100 Heard, 47 La. Ann. 1679, 18 So. 746, 47 

111. 495. The passage of an act by the L. R. A. 513, and cases collected in note 

first State legislature is a contemporary thereto in L. R. A.] 

interpretation of a constitutional clause * Story on Const. 407. And see 

zn pari materia of much weight. Cooper Evans v. Myers, 25 Pa. St. 116; Sadler v. 

Mf'g Co. v. Ferguson, 113 U. S. 727, 5 Langham, 34 Ala. 311; Barnes v. First 

Sup. Ct. Rep. 739 ; People v. Wright, 6 Parish in Falmouth, 6 Mass. 401 ; Union 

Col. 92. Where undercolor of authority Pacific R. R. Co. v. United States, 10 Ct. 

long practical construction has sanctioned of Cl. Rep. 548 ; s. c. in error, 91 U. S. 

certain appointments by the legislature, it 72. See also St. Paul, M. & M. R. Co. v. 

will control. Hoveyv. State, 118 Ind. 502, Phelps, 137 U. S. 528, 11 Sup. Ct. Rep. 

21 N. E. Rep. 890; Biggs v. McBride, 17 168; and Merritt v. Cameron, 137 U. S. 

Oreg. 640, 21 Pac. Rep. 878. The execu- 542, 11 Sup. Ct. Rep. 174.J 

tive construction of treaties is entitled to 2 1 Cranch, 299. 
a similar respect. Castro v. De Uriarte, 16 



106 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

would follow from changing it. The court said that, "although 
if it were now res Integra, it might be very difficult to maintain 
such a construction, jet at this day the argument ab inconvenlenti 
applies with great weight. We cannot shake a principle which 
in practice has so long and so extensively prevailed. If the 
practice originated in error, yet the error is now so common 
that it must have the force of law. The legal ground on which 
this provision is now supported is, that long and continued 
usage furnishes a contemporaneous construction which must 
prevail over the mere technical import of the words." 1 Lan- 
guage nearly as strong was also used by the Supreme Court of 
Maryland, where the point involved was the possession of a cer- 
tain power by the legislature, which it had constantly exercised 
for nearly seventy years. 2 

It is believed, however, that in each of these cases an exami- 
nation of the Constitution left in the minds of the judges suffi- 
cient doubt upon the question of its violation to warrant their 
looking elsewhere for aids in interpretation, and that the cases 
are not in conflict with the general rule as above laid down. 
Acquiescence for no length of time can legalize a clear usurpa- 
tion of power, where the people have plainly expressed their will 
in the Constitution, and appointed judicial tribunals to enforce 
it. A power is frequently yielded to merely because it is claimed, 
and it may be exercised for a long period, in violation of the 
constitutional prohibition, without the mischief which the Con- 
stitution was designed to guard against appearing, or without 
any one being sufficiently interested in the subject to raise the 
question; but these circumstances cannot be allowed to sanction 
a clear infraction of the Constitution. 3 We think we allow to 
contemporary and practical construction its full legitimate force 

1 Rogers v. Goodwin, 2 Mass. 476. 8 See further, on this subject, the case 
See also Fall v. Hazelrigg, 45 Ind. 576; of Sadler ;. Langham, 34 Ala. 311, 334; 
Scanlan v. Childs, 33 Wis. 663. People v. Allen, 42 N. Y. 378 ; Brown v. 

2 State v. Mayhew, 2 Gill, 487. In State, 5 Col. 525 ; Halm v. United States, 
Essex Co. v. Pacific Mills, 14 Allen, 389, 14 Ct. of Cl. 305; Swift v. United States, 
the Supreme Court of 'Massachusetts ex- 14 Ct. of Cl. 481. Practical acquiescence 
pressed the opinion that the constitution- in a supposed unconstitutional law is en- 
ality of the acts of Congress making titled to much greater weight when the 
treasury notes a legal tender ought not defect which is pointed out relates to 
to be treated by a State court as open to mere forms of expression or enactment 
discussion after the notes had practically than when it concerns the substance of 
constituted the currency of the country legislation ; and if the objection is purely 
for five years. At a still later day, how- technical, long acquiescence will be con- 
ever, the judges of the Supreme Court of elusive against it. Continental Imp. Co. 
the United States held these acts void, v. Phelps, 47 Mich. 299, 11 N. W. 167. 
though they afterwards receded from this 

position. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 



107 



when we suffer it, where it is clear and uniform, to solve in its 
own favor the doubts which arise on reading the instrument to 
be construed. 1 



1 There are cases which clearly go 
further than any we have quoted, and 
which sustain legislative action which 
they hold to be usurpation, on the sole 
ground of long acquiescence. Tims in 
Brigham v. Miller, 17 Ohio, 446, the ques- 
tion was, Has the legislature power to 
grant divorces ? The court say : " Our 
legislature have assumed and exercised 
this power for a period of more than forty 
years, although a clear and palpable as- 
sumption of power, and an encroachment 
upon the judicial department, in violation 
of the Constitution. To deny this long- 
exercised power, and declare all the con- 
sequences resulting from it void, is preg- 
nant with fearful consequences. If it 
affected only the rights of property, we 
should not hesitate; but second marriages 
have been contracted and children born, 
and it would bastardize all these, although 
born under the sanction of an apparent 
wedlock, authorized by an act of the legis- 
lature before they were born, and in con- 
sequence of which the relation was formed 
which gave them birth. On account of 
these children, and for them only, we 
hesitate. And in view of this, we are 
constrained to content ourselves with 
simply declaring that the exercise of the 
power of granting divorces, on the part 
of the legislature, is unwarranted and un- 
constitutional, an encroachment upon the 
duties of the judiciary, and a striking 
down of the dearest rights of individuals, 
without authority of law. We trust we 
have said enough to vindicate the Consti- 
tution, and feel confident that no depart- 
ment of State has any disposition to violate 
it, and that the evil will cease." So in 
Johnson v. Joliet & Chicago Railroad Co., 
23 111. 202, 207, the question was whether 
railroad corporations could be created by 
special law, without a special declaration 
by way of preamble that the object to be 
accomplished could not be attained by 
general law. The court say : " It is now 
too late to make this objection, since, by 
the action of the general assembly under 
this clause, special acts have been so long 
the order of the day and the ruling pas- 
sion with every legislature which has con- 
vened under the Constitution, until their 



acts of this description fill a huge and 
misshapen volume, and important and 
valuable rights are claimed under them. 
The clause has been wholly disregarded, 
and it would now produce far-spread ruin 
to declare such acts unconstitutional and 
void. It is now safer and more just to 
all parties to declare that it must be un- 
derstood that, in the opinion of the gen- 
eral assembly at the time of passing the 
special act, its object could not be attained 
under the general law, and this without 
any recital by way of preamble, as in the 
act to incorporate the Central Railroad 
Company. That preamble was placed 
there by the writer of this opinion, and a 
strict compliance with this clause of the 
Constitution would have rendered it neces- 
sary in every subsequent act. But the 
legislature, in their wisdom, have thought 
differently, and have acted differently, 
until now our special legislation and its 
mischiefs are beyond recovery or rem- 
edy." These cases certainly presented 
very strong motives for declaring the law 
to be what it was not; but it would have 
been interesting and useful if either of 
these learned courts had enumerated the 
evils that must be placed in the opposite 
scale when the question is whether a con- 
stitutional rule shall be disregarded; not 
the least of which is, the encouragement 
of a disposition on the part of legislative 
bodies to set aside constitutional restric- 
tions, in the belief that, if the unconstitu- 
tional law can once be put in force, and 
large interests enlisted under it, the courts 
will not venture to declare it void, but 
will submit to the usurpation, no matter 
how gross and daring. We agree with the 
Supreme Court of Indiana, that, in con- 
struing constitutions, courts have nothing 
to do with the argument ab inconvenienti, 
and should not "bend the Constitution to 
suit the law of the hour : " Greencastle 
Township v. Black, 6 Ind. 557, 565; and 
with Bronson, Ch. J., in what he says in 
Oakley v. Aspinwall, 3 N. Y. 647, 568 : 
" It is highly probable that inconveniences 
will result from following the Constitution 
as it is written. But that consideration 
can have no force with me. It is not for 
us, but for those who made the instru- 



108 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

Unjust Provisions. 

We have elsewhere expressed the opinion that a statute can- 
not be declared void on the ground solely that it is repugnant 
to a supposed general intent or spirit which it is thought pervades 
or lies concealed in the Constitution, but wholly unexpressed, 
or because, in the opinion of the court, it violates fundamental 
rights or principles, if it was passed in the exercise of a power 
which the Constitution confers. 1 Still less will the injustice of 
a constitutional provision authorize the courts to disregard it, 
or indirectly to annul it by construing it away. It is quite 
possible that the people may, under the influence of temporary 
prejudice, or a mistaken view of public policy, incorporate pro- 
visions in their charter of government, infringing upon the 
proper rights of individual citizens or upon principles which 
ought ever to be regarded as sacred and fundamental in repub- 
lican government; and it is also possible that obnoxious classes 
may be unjustly disfranchised. The remedy for such injustice 
must be found in the action of the people themselves, through 
an amendment of their work when better counsels prevail. Such 
provisions, when free from doubt, must receive the same con- 
struction as any other. We do not say, however, that if a clause 

ment, to supply its defects. If the legis- ess. But if the legislature or the courts 

lature or the courts may take that office undertake to cure defects by forced and 

upon themselves, or if, under color of unnatural constructions, they inflict a 

construction, or upon any other specious wound upon the Constitution which noth- 

ground, they may depart from that which ing can heal. One step taken by the 

is plainly declared, the people may well legislature or the judiciary, in enlarging 

despair of ever being able to set any the powers of the government, opens the 

boundary to the powers of the govern- door for another which will be sure to 

ment. Written constitutions will be more follow ; and so the process goes on until 

than useless. Believing as I do that the all respect for the fundamental law is 

success of free institutions depends upon lost, and the powers of the government 

a rigid adherence to the fundamental law, are just what those in authority please to 

I have never yielded to considerations of call them." See also Encking v. Simmons, 

expediency in expounding it. There is 28 Wis. 272. Whether there may not be 

always some plausible reason for latitudi- circumstances under which the State can 

narian constructions which are resorted to be held justly estopped from alleging the 

for the purpose of acquiring power; some invalidity of its own action in apportion- 

evil to be avoided or some good to be at- ing the political divisions of the State, 

tained by pushing the powers of the gov- and imposing burdens on citizens, where 

ernment bey ond their legitimate boundary, such action has been acquiesced in for a 

It is by yielding to such influences that considerable period, and rights have been 

constitutions are gradually undermined acquired through bearing the burdens 

and finally overthrown. My rule has under it, see Rumsey v. People, 19 N. Y. 

ever been to follow the fundamental law 41 ; People v. Maynard, 15 Mich. 470 ; 

as it is written, regardless of consequences. Kneeland v. Milwaukee, 15 Wis. 454. 

If the law does not work well, the people 1 See post, p. 240, and cases referred to 

can amend it; and inconveniences can in notes, 
be borne long enough to await that proc- 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 109 

should bo found in a constitution which should appear at first 
blush to demand a construction leading to monstrous and absurd 
consequences, it might not be the duty of the court to question 
and cross-question such clause closely, with a view to discover 
in it, if possible, some other meaning more consistent with the 
general purposes and aims of these instruments.- When such a 
case arises, it will be time to consider it. 1 

Duty in Case of Doubt. 

But when all the legitimate lights for ascertaining the mean- 
ing of the constitution have been made use of, it may still happen 
that the construction remains a matter of doubt. In such a case 
it seems clear that every one called upon to act where, in his 
opinion, the proposed action would be of doubtful constitution- 
ality, is bound upon the doubt alone to abstain from acting. 
Whoever derives power from the constitution to perform any 
public function is disloyal to that instrument, and grossly dere- 
lict in duty, if he does that which he is not reasonably satisfied 
the constitution permits. Whether the power be legislative, 
executive, or judicial, there is manifest disregard of constitu- 
tional and moral obligation by one who, having taken an oath 
to observe that instrument, takes part in an action which he 
cannot say he believes to be no violation of its provisions. A 
doubt of the constitutionality of any proposed legislative enact- 
ment should in any case be reason sufficient for refusing to adopt 
it; and, if legislators do not act upon this principle, the reasons 
upon which are based the judicial decisions sustaining legisla- 
tion in very many cases will cease to be of force. 

Directory and Mandatory Provisions. 

The important question sometimes presents itself, whether we 
are authorized in any case, when the meaning of a clause of the 
Constitution is arrived at, to give it such practical construction 
as will leave it optional with the department or officer to which 
it is addressed to obey it or not as he shall see fit. In respect 
to statutes it has long been settled that particular provisions 
may be regarded as directory merely; by which is meant that 
they are to be considered as giving directions which ought to be 
followed, but not as so limiting the power in respect to which 
the directions are given that it cannot effectually be exercised 
without observing them. The force of many of the decisions on 

1 McMullen v. Hodge, 6 Tex. 34. See Cincinnati, 21 Ohio St. 14 ; Bailey v. 
Clarke v. Irwin, 5 Nev. Ill ; Walker v. Commonwealth, 11 Bush, 688. 



110 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

this subject will be readily assented to by all ; while others are 
sometimes thought to go to the extent of nullifying the intent of 
the legislature in essential particulars. It is not our purpose to 
examine the several cases critically, or to attempt what we 
deem impossible to reconcile them all ; but we shall content 
ourselves with' quoting from a few, with a view, if practicable, 
to ascertaining some line of principle upon which they can be 
classified. 

There are cases where, whether a statute was to be regarded as 
merely directory or not, was made to depend upon the employing 
or failing to employ negative words plainly importing that the 
act should be done in a particular manner or time, and not 
otherwise. 1 The use of such words is often conclusive of an 
intent to impose a limitation ; but their absence is by no means 
equally conclusive that the statute was not designed to be man- 
datory. 2 Lord Mansfield would have the question whether man- 
datory or not depend upon whether that which was directed to 
be done was or was not of the essence of the thing required. 3 
The Supreme Court of New York, in an opinion afterwards 
approved by the Court of Appeals, laid down the rule as one 
settled by authority, that "statutes directing the mode of pro- 
ceeding by public officers are directory, and are not regarded as 
essential to the validity of the proceedings themselves, unless it 
be so declared in the statute. " * This rule strikes us as very 
general, and as likely to include within its scope, in many cases, 
things which are of the very essence of the proceeding. The 
questions in that case were questions of irregularity under elec- 
tion laws, not in any way hindering the complete expression of 
the will of the electors; and the court was doubtless right in 
holding that the election was not to be avoided for a failure in 
the officers appointed for its conduct to comply in all respects 
with the directions of the statute there in question. The same 
court in another case say : " Statutory requisitions are deemed 
directory only when they relate to some immaterial matter, 
where a compliance is a matter of convenience rather than of 
substance. " 5 The Supreme Court of Michigan, in a case involv- 

1 Slayton v. Hulings, 7 Ind. 144 ; King 6 People v. Schermerhorn, 19 Barb. 
v. Inhabitants of St. Gregory, 2 Ad. & El. 640, 658. If a statute imposes a duty and 
99 ; King v. Inhabitants of Hipswell, 8 gives the means of performing that duty, 
B. & C. 466. it must be held to be mandatory. Veazie 

2 District Township v. Dubuque, 7 v. China, 50 Me. 618. " It would not per- 
lowa, 262, 284. haps be easy to lay down any general rule 

8 Rex v. Locksdale, 1 Burr. 447. as to when the provisions of a statute are 

* People v. Cook, 14 Barb. 290; B.C. merely directory, and when mandatory 

8 N. Y. 67. or imperative. Where the words are 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. Ill 

ing the validity of proceedings on the sale of land for taxes, laid 
down the rule that " what the law requires to be done for the 
protection of the taxpayer is mandatory, and cannot be regarded 
as directory merely." 1 A similar rule has been recognized in 
a case in Illinois. Commissioners had been appointed to ascer- 
tain and assess the damage and recompense due to the owners 
of land which might be taken, on the real estate of the persons 
benefited by a certain local improvement, in proportion as nearly 
as might be to the benefits resulting to each. By the statute, 
when the assessment was completed, the commissioners were to 
sign and return the same to the city council within forty days 
of their appointment. This provision was not complied with, 
but return was made afterwards, and the question was raised as 
to its validity when thus made. In the opinion of the court, 
this question was to be decided by ascertaining whether any 
advantage would be lost, or right destroyed, or benefit sacrificed, 
either to the public or to any individual, by holding the provi- 
sion directory. After remarking that they had held an assess- 
ment under the general revenue law, returned after the time 
appointed by law, as void, because the person assessed would 
lose the benefit of an appeal from the assessment, 2 they say of 
the statute before the court: "There are no negative words used 
declaring that the functions of the commissioners shall cease 
after the expiration of the forty days, or that they shall not 
make their return after that time; nor have we been able to 
discover the least right, benefit, or advantage which the property 
owner could derive from having the return made within that 
time, and not after. No time is limited and made dependent on 
that time, within which the owner of the property may apply to 

affirmative, and relate to the manner in ute providing that a court may appoint 

whicli power or jurisdiction vested in a three commissioners to determine public 

public officer or body is to be exercised, rights, "may" is mandatory, and parties 

and not to the limits of the power or juris- cannot agree that less than three shall 

diction itself, they may, and often have act. Monmouth v. Leeds, 76 Me. 28. 

been, construed to be directory ; but neg- a Clark v. Crane, 5 Mich. 160, 154. 

ative words, which go to the power or See also Young v. Joslin, 13 R. I. 675; 

jurisdiction itself, have never, that lam Sliawnee County v. Carter, 2 Kan. 115; 

aware of, been brought within that cate- Marx v. Hanthorn, 148 U. S. 172, 13 

gory. ' A clause is directory,' says Taun- Sup. Ct Rep. 608] In Life Association 

ton, J., ' when the provisions contain mere v. Board of Assessors, 49 Mo. 512, it is 

matter of discretion and no more; but held that a constitutional provision that 

not so when they are followed by words "all property subject to taxation ought 

of positive prohibition.' Pearse v. Mor- to be taxed in proportion to its value " 

rice, 2 Ad. & El. 96." Per Sharsvood.J., is a prohibition against its being taxed 

in Bladen v. Philadelphia, 60 Pa. St. in any other mode, and the word ought is 

464, 466. And see Pittsburg v. Coursin, mandatory. 

74 Pa. St. 400 ; Kennedy v. Sacra- 2 Wheeler v. Chicago, 24 111. 105, 10& 
mento, 19 Fed. Rep. 580. Under a stat- 



112 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

have the assessment reviewed or corrected. The next section 
requires the clerk to give ten days' notice that the assessment 
has been returned, specifying the day when objections may be 
made to the assessment before the common council by parties 
interested, which hearing may be adjourned from day to day; 
and the common council is empowered in its discretion to con- 
firm or annul the assessment altogether, or to refer it back to 
the same commissioners, or to others to be by them appointed. 
As the property owner has the same time and opportunity to 
prepare himself to object to the assessment and have it cor- 
rected, whether the return be made before or after the expira- 
tion of the forty days, the case differs from that of Marsh v. 
Chesnut, 1 at the very point on which that case turned. Nor 
is there any other portion of the chapter which we have discov- 
ered, bringing it within the principle of that case, which is the 
well-recognized rule in all the books." 2 

The rule is nowhere more clearly stated than by Chief Justice 
Shaw, in Torrey v. Milbury, 8 which was also a tax case. "In 
considering the various statutes regulating the assessment of 
taxes, and the measures preliminary thereto, it is not always 
easy to distinguish which are conditions precedent to the legality 
and validity of the tax, and which are directory merely, and do 
not constitute conditions. One rule is very plain and well settled, 
that all those measures that are intended for the security of the 
citizen, for ensuring equality of taxation, and to enable every 
one to know with reasonable certainty for what polls and for 
what real and personal estate he is taxed, and for what all those 
who are liable with him are taxed, are conditions precedent; 
and if they are not observed, he is not legally taxed ; and he may 
resist it in any of the modes authorized by law for contesting 
the validity of the tax. But many regulations are made by 

1 14 111. 223. to hold any requirement of a law unneces- 

2 Wheeler v. Chicago, 24 111. 105, 108. sary to be complied with, unless it be 
8 21 Pick. 64,67. We commend in the manifest the legislature did not intend to 

same connection the views of Lewis, Ch. impose the consequence which would nat- 
J., in Corbett v. Bradley, 7 Nev. 108: urally follow from a non-compliance, or 
" When any requirement of a statute is which would result from holding the re- 
held to be directory, and therefore not quirement mandatory or indispensable, 
material to be followed, it is upon the as- If it be clear that no penalty wns in- 
sumption that the legislature itself so tended to be imposed for a non-com pli- 
considered it, and did not make the right ance, then, as a matter of course, it is 
conferred dependent upon a compliance but carrying out the will of the legisla- 
with the form prescribed for securing it. ture to declare the statute in that respect 
It is upon this principle that the courts to be simply directory. But if there be 
often hold the time designated in a stat- anything to indicate the contrary, a full 
ute, where a thing is to be done, to be di- compliance witli it must be enforced." 
rectory. No court certainly has the right See also Hurford v. Omaha, 4 Neb. 336. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 113 

statutes designed for the information of assessors and officers, 
and intended to promote method, system, and uniformity in the 
modes of proceeding, a compliance or non-compliance with which 
does in no respect affect the rights of taxpaying citizens. These 
may be considered directory ; officers may be liable to legal 
animadversion, perhaps to punishment, for not observing them; 
but yet their observance is not a condition precedent to the 
validity of the tax." 

We shall quote further only from a single other case upon this 
point. The Supreme Court of Wisconsin, in considering the 
validity of a statute not published within the time required by 
la\v, " understand the doctrine concerning directory statutes to 
be this: that where there is no substantial reason why the thing 
to be done might not as well be done after the time prescribed 
as before, no presumption that by allowing it to be so done it 
may work an injury or wrong, nothing in the act itself, or in 
other acts relating to the same subject-matter, indicating that 
the legislature did not intend that it should rather be done after 
the time prescribed than not to be done at all, there the courts 
assume that the intent was, that if not done within the time 
prescribed it might be done afterwards. But when any of these 
reasons intervene, then the limit is established." 1 

These cases perhaps sufficiently indicate the rules, so far as 
any of general application can be declared, which are to be 
made use of in determining whether the provisions of a statute 
are mandatory or directory. Those directions which are not of 
the essence of the thing to be done, but which are given with a 
view merely to the proper, orderly, and prompt conduct of the 
business, and by a failure to obey which the rights of those 
interested will not be prejudiced, are not commonly to be re- 
garded as mandatory ; and if the act is performed, but not in the 
time or in the precise mode indicated, it may still be sufficient, 
if that which is done accomplishes the substantial purpose of the 
statute. 2 But this rule presupposes that no negative words are 

1 State v. Lean, 9 Wis. 279, 292. See Ark. 609 ; State Auditor v. Jackson Co., 

further, for the views of this court on the 65 Ala. 142. 

subject here discussed, Wendel v. Dur- a The following, in addition to those 

bin, 26 Wis. 390. The general doctrine cited, are some of the cases in this coun- 

of the cases above quoted is approved and try in which statutes have been declared 

followed in French v. Edwards, 13 Wall, directory only : Odiorner. Rand, 59 N. H. 

606. In Low v. Dunham, 61 Me. 566, a 504 ; Pond v. Negus, 3 Mass. 230 ; Wil- 

statute is said to be mandatory where liams v. School District, 21 Pick. 75 ; 

public interests or rights are concerned, City of Lowell v. Hadley, 8 Met. 180 ; 

and the public or third persons have a Holland v. Osgood, 8 Vt. 276 ; Corliss 

claim dejure that the power shall be ex- v. Corliss, 8 Vt. 373; People i>. Allen, 

erciscd. And see Wiley v. Flournoy, 30 6 Wend. 486 ; Marchant v. Langworthy, 

8 



114 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

employed in the statute which expressly or by necessary impli- 
cation forbid the doing of the act at any other time or in any 
other manner than as directed. Even as thus laid down and 
restricted, the doctrine is one to be applied with much circum- 
spection ; for it is not to be denied that the courts have some- 
times, in their anxiety to sustain the proceedings of careless or 
incompetent officers, gone very far in substituting a judicial view 
of what was essential for that declared by the legislature. 1 

But the courts tread upon very dangerous ground when they 
venture to apply the rules which distinguish directory and 
mandatory statutes to the provisions of a constitution. Con- 
stitutions do not usually undertake to prescribe mere rules of 
proceeding, except when such rules are looked upon as essential 
to the thing to be done ; and they must then be regarded in the 
light of limitations upon the power to be exercised. It is the 
province of an instrument of this solemn and permanent character 
to establish those fundamental maxims, and fix those unvarying 
rules by which all departments of the government must at all 
times shape their conduct; and if it descends to prescribing 
mere rules of order in unessential matters, it is lowering the 
proper dignity of such an instrument, and usurping the proper 
province of ordinary legislation. We are not therefore to 
expect to find in a constitution provisions which the people, in 
adopting it, have not regarded as of high importance, and worthy 
to be embraced in an instrument which, for a time at least, is to 
control alike the government and the governed, and to form a 
standard by which is to be measured the power which can be 
exercised as well by the delegate as by the sovereign people 
themselves. If directions are given respecting the times or 

6 Hill, 646 ; Ex parte Heath, 3 Hill, 42 ; Ala. 620 ; Sorchan v. Brooklyn, 62 N. Y. 
People v. Honey, 12 Wend. 481 ; Jackson 339; People v. Tompkins, 64 N. Y. 53; 
v. Young, 5 Cow. 269 ; Striker v. Kelley, Limestone Co. v. Rather, 48 Ala. 433 ; 

7 Hill, 9; People v. Peck. 11 Wend. 604; Webster v. French, 12 111. 302; McKune 
Matter of Mohawk & Hudson Railroad v. Weller, 11 Cal. 49; State v. Co. Com- 
Co., 19 Wend. 135 ; People v. Runkel, missioners of Baltimore, 29 Md. 516 ; 
9 Johns. 147 ; Gale v. Mead, 2 Denio, 160 ; Fry v. Booth, 19 Ohio St. 25 ; Whalin v. 
Doughty v. Hope, 3 Denio, 249 ; Elmen- Macomb, 76 111. 49 ; Hurford v. Omaha, 
dorf v. Mayor, &c. of New York, 25 Wend. 4 Neb. 336 ; Lackawana 1 Iron Co. v. Lit- 
692; Thames Manufacturing Co. v. La- tie Wolf, 38 Wis. 152; R. R. Co. v. War- 
throp, 7 Conn. 550 ; Colt v. Eves, 12 Conn, ren Co., 10 Bush, 711 ; Grant v. Spencer, 
243; People v. Doe, 1 Mich. 451 ; Parks 1 Mont. 136. The list might easily be 
v. Goodwin, 1 Doug. (Mich.) 56; Hickey largely increased. 

v. Hinsdale, 8 Mich. 267 ; People v. Hart- 1 See upon this subject the remarks of 

well, 12 Mich. 508 ; State v. McGinley, Mr. Sedgwick in his work on Statutory 

4 Ind. 7; Stayton v. Hulings, 7 Ind. 144; and Constitutional Law, p. 375, and those 

New Orleans v. St. Romes, 9 La. Ann. 573 ; of Hubbard, J., in Briggs v. Georgia, 15 

Edwards v. James, 13 Tex. 52 ; State v. Vt. 61. Also see Dryfus v. Dridges, 45 

Click, 2 Ala. 26; Savage v. Walshe, 26 Miss. 247. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 115 

modes of proceeding in which a power should be exercised, there 
is at least a strong presumption that the people designed it 
should be exercised in that time and mode only ; 1 and we im- 
pute to the people a want of due appreciation of the purpose and 
proper province of such an instrument, when we infer that such 
directions are given to any other end. Especially when, as has 
been already said, it is but fair to presume that the people in 
their constitution have expressed themselves in careful and 
measured terms, corresponding with the immense importance 
of the powers delegated, and with a view to leave as little as 
possible to implication. 2 

There are some cases, however, where the doctrine of directory 
statutes has been applied to constitutional provisions ; but they 
are so plainly at variance with the weight of authority upon the 
precise points considered that we feel warranted in saying that 
the judicial decisions as they now stand do not sanction the 
application. In delivering the opinion of the New York Court 
of Appeals in one case, Mr. Justice Willard had occasion to 
consider the constitutional provision, that on the final passage 
of a bill the question shall be taken by ayes and noes, which 
shall be duly entered upon the journals; and he expressed the 
opinion that it was only directory to the legislature. 3 The 
remark was obiter dictum, as the court had already decided that 
the provision had been fully complied with ; and those familiar 
with the reasons which have induced the insertion of this clause 
in our constitutions will not readily concede that its sole design 
was to establish a mere rule of order for legislative proceedings 
which might be followed or not at discretion. Mr. Chief Justice 
Thurman, of Ohio, in a case not calling for a discussion of the 
subject, has considered a statute whose validity was assailed on 
the ground that it was not passed in the mode prescribed by the 
constitution. "By the term mode," he says, "I do not mean to 

1 See State v. Johnson, 26 Ark. 281. People v. Lawrence, 36 Barb. 177 ; State 
Where the Constitution provides that v. Johnson, 26 Ark. 281 ; State v. Glenn, 
the legislature shall apportion the State 18 Nev. 34, 1 Pac. 186. " The essential 
into legislative districts every ten years, nature and object of constitutional law 
and that such appointment shall be based being restrictive upon the powers of the 
upon the last preceding federal census, several departments of government, it is 
one exercise of this power of apportion- difficult to comprehend how its provisions 
nient exhausts it, and the State cannot can be regarded as merely directory." 
be reapportioned until after the next fed- Nicholson, Ch. J., in Cannon v. Mathes, 
eral census. People v. Hutchinson, 172 8 Heisk. 504, 517. Unless expressly 
111. 486, 50 N. E. 599, 40 L. R. A. 770.] permissive, constitutional provisions are 

2 Wolcott v. Wigton, 7 Ind. 44; per mandatory. Varney v. Justice, 86 Ky. 
Branson, J., in People v. Purdy, 2 Hill, 596, 6 S. W. 457. 

81 ; Greencastle Township >. Black, 5 Ind. 8 People v. Supervisors of Chenango, 
666 ; Opinions of Judges, 18 Me. 458. See 8 N. Y. 317. 



116 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

include the authority in which the lawmaking power resides, or 
the number of votes a bill must receive to become a law. That 
the power to make law, is vested in the assembly alone, and that 
no act has any force that was not passed by the number of votes 
required by the constitution, are nearly, or quite, self-evident 
propositions. These essentials relate to the authority by which, 
rather than the mode in which, laws are to be made. Now to 
secure the careful exercise of this power, and for other good 
reasons, the constitution prescribes or recognizes certain things 
to be done in the enactment of laws, which things form a course 
or mode of legislative procedure. Thus we find, inter alia, the 
provision before quoted that every bill shall be fully and dis- 
tinctly read on three different days, unless, in case of urgency, 
three-fourths of the house in which it shall be pending shall 
dispense with this rule. This is an important provision without 
doubt, but, nevertheless, there is much reason for saying that 
it is merely directory in its character, and that its observance by 
the assembly is secured by their sense of duty and official oaths, 
and not by any supervisory power of the courts. Any other 
construction, we incline to think, would lead to very absurd and 
alarming consequences. If it is in the power of every court 
(and if one has the power, every one has it) to inquire whether 
a bill that passed the assembly was ' fully ' and 'distinctly ' read 
three times in each house, and to hold it invalid if, upon any 
reading, a word was accidentally omitted, or the reading was 
indistinct, it would obviously be impossible to know what is the 
statute law of the State. Now the requisition that bills shall be 
fully and distinctly read is just as imperative as that requiring 
them to be read three times ; and as both relate to the mode of 
procedure merely, it would be difficult to find any sufficient 
reason why a violation of one of them would be less fatal to an 
act than a violation of the other." l 

A requirement that a law shall be read distinctly, whether 
mandatory or directory, is, from the very, nature of the case, 
addressed to the judgment of the legislative body, whose decision 
as to what reading is sufficiently distinct to be a compliance 
cannot be subject to review. But in the absence of authority to 
the contrary, we should not have supposed that the requirement 
of three successive readings on different days stood upon the 
same footing. 2 To this extent a definite and certain rule is 

i Miller v. State, 3 Ohio St. 475, 483. 2 See People v. Campbell, 8 III. 466; 

The provision for three readings on sep- McCulloch v State, 11 Ind. 424 ; Cannon 

arate days does not apply to amendments v. Mathes, 8. Heisk. 504; Spangler v. 

made in the progress of the bill through Jacob}', 14 111.297; People ;. Starne, 35 

the houses. People v. Wallace, 70 111. 680. 111. 121 ; Kyan v. Lynch, 68 111. loO. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 117 

capable of being, and has been, laid down, which can be literally 
obeyed ; and the legislative body cannot suppose or adjudge it to 
have been done if the fact is otherwise. The requirement has 
an important purpose, in making legislators -proceed in their 
action with caution and deliberation ; and there cannot often be 
difficulty in ascertaining from the legislative records themselves 
if the constitution has been violated in this particular. There 
is, therefore, no inherent difficulty in the question being reached 
and passed upon by the courts in the ordinary mode, if it is 
decided that the constitution intends legislation shall be reached 
through the three readings, and not otherwise. 

The opinion above quoted was recognized as law by the 
Supreme Court of Ohio in a case soon after decided. In that 
case the court proceed to say: "The . . . provision . . . that 
no bill shall contain more than one subject, which shall be 
clearly expressed in its title, is also made a permanent rule in 
the introduction and passage of bills through the houses. The 
subject of the bill is required to be clearly expressed in the title 
for the purpose of advising members of its subject, when voting 
in cases in which the reading has been dispensed with by a two- 
thirds vote. The provision that a bill shall contain but one 
subject was to prevent combinations by which various and dis- 
tinct matters of legislation should gain a support which they 
could not if presented separately. As a rule of proceeding in 
the General Assembly, it is manifestly an important one. But 
if it was intended to effect any practical object for the benefit of 
the people in the examination, construction, or operation of acts 
passed and published, we are unable to perceive it. The title 
of an act may indicate to the reader its subject, and under the 
rule each act would contain one subject. To suppose that for 
such a purpose the Constitutional Convention adopted the rule 
under consideration would impute to them a most minute pro- 
vision for a very imperfect heading of the chapters of laws and 
their subdivision. This provision being intended to operate 
upon bills in their progress through the General Assembly, it 
must be held to be directory only. It relates to bills, and not 
to acts. It would be most mischievous in practice to make the 
validity of every law depend upon the judgment of every judicial 
tribunal of the State, as to whether an act or a bill contained 
more than one subject, or whether this one subject was clearly 
expressed in the title of the act or bill. Such a question would 
be decided according to the mental precision and mental disci- 
pline of each justice of the peace and judge. No practical 
benefit could arise from such inquiries. We are therefore of 



118 



CONSTITUTIONAL LIMITATIONS. 



[CH. IV. 



the opinion that in general the only safeguard against the vio- 
lation of these rules of the houses is their regard for, and their 
oath to support, the constitution of the State. We say, in gen- 
eral, the only safeguard; for whether a manifestly gross and 
fraudulent violation of these rules might authorize the court to 
pronounce a law unconstitutional, it is unnecessary to determine. 
It is to be presumed no such case will ever occur." * 

If the prevailing doctrine of the courts were in accord with 
this decision, it might become important to consider whether 
the object of the clause in question, as here disclosed, was not 
of such a character as to make the provision mandatory even in 
a statute. But we shall not enter upon that subject here, as 
elsewhere we shall have occasion to refer to decisions made by 
the highest judicial tribunals in nearly all the States, recogniz- 



i Pirn v. Nicholson, 6 Ohio St. 176, 
179. Those provisions which relate to 
the structure of a bill or the forms to be 
observed in its passage are generally di- 
rectory, while those as to the number of 
members necessary to pass a bill and as 
to the effect and operation of a bill when 
passed, are usually mandatory. Ex parte 
Talk, 42 Ohio St. 638. But the authenti- 
cation of an act must be by signature, and 
one which, though passed, is nol^ signed 
nor enrolled is void. State v. Kiesewet- 
ter, 45 Ohio St. 254, 12 N. E. 807. 

See also in line with Pirn v. Nicholson, 
supra ; Washington v. Page, 4 Cal. 388. 
In Hill v. Boyland, 40 Miss. 618, a provi- 
sion requiring of all officers an oath to 
support the constitution was held not to 
invalidate the acts of officials who had 
neglected to take such an oath. And in 
McPherson v. Leonard, 29 Md. 377, the 
provision that the style of all laws shall 
be, " Be it enacted by the General As- 
sembly of Maryland," was held directory. 
Similar rulings were made in Cape 
Girardeau v. Riley, 52 Mo. 424; St. Louis 
v. Foster, 52 Mo. 513 ; Swann v. Buck, 
40 Miss. 268. 

Directly the opposite has been held in 
Nevada. State v. Rogers, 10 Nev. 250. 
So a requirement that indictments shall 
conclude, "against the peace and dignity 
of the people of West Virginia," was held 
in Lemons v. People. 4 W. Va. 755, 1 
Green Cr. R. 666, to be mandatory, and 
an indictment which complied with it, 
except in abbreviating the name of the 
State, was held bad. 



A statute which is passed in obedience 
to a constitutional requirement must be 
held mandatory. State v. Pierce, 35 Wis. 
93, 99. 

A provision that the legislature shall 
provide for determining contested elec- 
tions is mandatory upon that depart- 
ment, but if in its enactments it fails to 
carry out the provision, the courts can- 
not annul the acts on that ground. 
Schulherr v. Bordeaux, 64 Miss. 59, 8 
So. 201. So if the legislature disregards 
a provision that before a special law is 
enacted there must be evidence of pub- 
lication of notice of intention to introduce 
it. Davis v. Gaines, 48 Ark. 370, 3 S. W. 
184. 

If a constitution provides " that when 
any bill is presented for an act of in- 
corporation, it shall be continued until 
another election of members of Assembly 
shall have taken place and public notice 
of the pendency thereof given, it does 
not necessarily follow that the organ- 
ization under the charter is not as to 
all practical purposes valid. The pro- 
vision is directory to the Assembly, and 
in the absence of any clause forbid- 
ding the enactment, does not affect the 
corporators unless the State itself in- 
tervenes. Whitney r. Wyman, 101 U. S. 
392, 397. The State may waive condi- 
tions, and so long as the State raises 
no objection it is immaterial to other 
parties whether it is a corporation de 
facto or de jure. 'Ibid." McClinch v. 
Sturgis, 72 Me. 288, 295. 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 119 

ing similar provisions as mandatory, and to be enforced by the 
courts. And we concur fully in what was said by Mr. Justice 
Emmot in speaking of this very provision, that "it will be found 
upon full consideration to be difficult to treat any constitutional 
provision as merely directory and not imperative." 1 And with 
what was said by Mr. Justice Lumpkin, as to the duty of the 
courts: "It has been suggested that the prohibition in the seven- 
teenth section of the first article of the Constitution, 'Nor shall 
any law or ordinance pass containing any matter different from 
what is expressed in the title thereof, 'is directory only to the 
legislative and executive or law-making departments of the 
government. But we do not so understand it. On the contrary, 
we consider it as much a matter of judicial cognizance as any 
other provision in that instrument. If the courts would refuse 
to execute a law suspending the writ of habeas corpus when the 
public safety did not require it, a law violatory of the freedom 
of the press or trial by jury, neither would they enforce a statute 
which contained matter different from what was expressed in the 
title thereof." 2 

Self-executing Provisions. 

But although none of the provisions of a constitution are to 
be looked upon as immaterial or merely advisory, there are 
some which, from the nature of the case, are as incapable of 
compulsory enforcement as are directory provisions in general. 3 
The reason is that, while the purpose may be to establish rights 
or to impose duties, they do not in and of themselves constitute 
a sufficient rule by means of which such right may be protected 
or such duty enforced. In such cases, before the constitutional 
provision can be made effectual, supplemental legislation must 
be had ; and the provision may be in its nature mandatory to 
the legislature to enact the needful legislation, though back of 
it there lies no authority to enforce the command. Sometimes 
the constitution in terms requires the legislature to enact laws 
on a particular subject; and here it is obvious that the require- 
ment has only a moral force: the legislature ought to obey it; 
but the right intended to be given is only assured when the 

1 People v. Lawrence, 36 Barb. 177, 43 Ala. 224; Nougues v. Douglass, 7 Cal. 
186; QMulnix v. Mutual Hen. L. Ins. Co., 65; State v. McCann, 4 Lea, 1. 

23 Col. 85, 46 Pae. 1114, 33 L. R. A. 3 There are also many which merely 

827.] contemplate the exercise of powers con- 

2 Protho v. Orr, 12 Ga. 36. See also ferred, when the legislature in its discre- 
Opinions of Judges, 18 Me. 458; Indiana tion shall deem it wise ; like the provision 
Central Railroad Co. v. Potts, 7 Ind. 681; that "suits may be brought against the 
People v. Starne, 35 111. 121 ; State v. State in such courts as may be by law 
Miller, 45 Mo. 495 ; Weaver v. Lapsley, provided." Ex parte State, 52 Ala. 231. 



120 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

legislation is voluntarily enacted. 1 Illustrations may be found 
in constitutional provisions requiring the legislature to provide 
by law uniform and just rules for the assessment and collection 
of taxes; these must lie dormant until the legislation is had; 2 
they do not displace the law previously in force, though the 
purpose may be manifest to do away with it by the legislation 
required. 3 So, however plainly the constitution may recognize 
the right to appropriate private property for the general benefit, 
the appropriation cannot be made until the law has pointed out 
the cases, and given the means by which compensation may be 
assured.* A different illustration is afforded by the new amend- 
ments to the federal Constitution. The fifteenth amendment 
provides that "the right of citizens of the United States to vote 
shall not be denied or abridged by the United States, or by any 
State, on account of race, color, or previous condition of servi- 
tude. " To this extent it is self-executing, and of its own force 
it abolishes all distinctions in suffrage based on the particulars 
enumerated. But when it further provides that " Congress shall 
have power to enforce this article by appropriate legislation," it 
indicates the possibility that the rule may not be found suffi- 
ciently comprehensive or particular to protect fully this right to 
equal suffrage, and that legislation may be found necessary for 
that purpose. 6 Other provisions are completely self-executing, 

1 School Board v. Patten, 62 Mo. 444. executing to this extent, that everything 

See Schulherr v. Bordeaux, 64 Miss. 59, done in violation of it is void. Brien v. 

8 So. 201 ; [State v. Spokane, 24 Wash. Williamson, 8 Miss. 14; Russell c. Ayer, 

63, 63 Pac. 1116-3 12 N - c - 180 > 27 s - E - 133 > ' 37 L - R - A - 

4 Williams v. Detroit, 2 Mich. 560 ; 246.] A provision that " the legislature 

People v. Lake Co., 33 Cal. 487 : Bowie shall have no power to authorize lotteries 

. Lott, 24 La. Ann. 214 ; Mississippi for any purpose, and shall pass laws to 

Mills v. Cook, 56 Miss. 40 ; Coatesville prohibit the sale of lottery tickets in this 

Gas Co. v. Chester Co., 97 Pa. St. 476. State," was held to be of itself a prohibi- 

8 Moore, J., in Supervisors of Dod- tion of lotteries. Bass v. Nashvile, Meigs, 

dridge v. Stout, 9 W. Va. 703, 705 ; Cahoon 421 ; Yerger v. Rains, 4 Humph. 259. In 

v. Commonwealth, 20 Gratt. 733; Lehigh State v. Woodward, 89 Ind. 110, it was 

Iron Co. v. Lower Macungie, 81 Pa. St. held that a like provision took away any 

482; Erie Co. v. Erie, 113 Pa. St. 360, pre-existing authority to carry them on, 

6 Atl. 136. but that it needed legislation to make 

4 Lamb v. Lane, 4 Ohio St. 167. See them criminal. All negative or pro- 
School Board v. Patten, 62 Mo. 444 ; hibitive provisions in a constitution are 
Myers v. English, 9 Cal. 341 ; Gillinwater self-executing. Law v. People, 87 111. 385. 
v. Mississippi, &c. R. R. Co., 13 111. 1 ; f_Where the constitution requires that 
Cairo, &c. R. R. Co. v. Trout, 32 Ark. 17. all public institutions shall be located at 
A provision that all printing shall be the seat of government, the courts have 
done by the lowest bidder under regula- power to determine whether a proposed 
tions supplied by law is not self-execut- insane asylum is a public institution, and, 
ing. Brown v. Seay, 86 Ala. 122, 5 So. if it is found so to be, to enjoin its loca- 
216. tion elsewhere. State v. Metschan, 32 

6 United States v. Reese, 92 U. S. Oreg. 372, 46 Pac. 791, 41 L. R. A. 692, 

214. Any constitutional provision is self- 63 Pac. 1071. Prohibition of donations 



CH. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 



121 



and manifestly contemplate no legislation whatever to give them 
full force and operation. 1 

A constitutional provision may be said to be self-executing if 
it supplies a sufficient rule by means of which the right given 
may be enjoyed and protected, or the duty imposed may be 
enforced; 2 and it is not self-executing when it merely indicates 
principles, without laying down rules by means of which those 
principles may be given the force of law. Thus, a constitution 
may very clearly require county and town government; but if it 
fails to indicate its range, and to provide proper machinery, it 
is not in this particular self-executing, and legislation is essen- 
tial. 3 Rights in such a case may lie dormant until statutes shall 
provide for them, though in so far as any distinct provision is 
made which by itself is capable of enforcement, it is law, (a) and 
all supplementary legislation must be in harmony with it. 



by municipalities to private corporations 
is self-executing. Washingtonian Home 
v. Chicago, 167 111. 414, 41 N. E. 893, 
29 L. Ii. A. 798Q 

1 See People v. Bradley, 60 111. 390; 
People v. McRoberts, 62 111. 38 ; Mitchell 
v. Illinois, &c. Coal Co., 68 111. 286; 
Beecher v. Baldy, 7 Mich. 488 ; People 
i'. Humsey. 64 111. 41; State v. Holladay, 
64 Mo. 526 ; Miller v. Max, 65 Ala. 322; 
Hills v. Chicago, 60 111. 86 ; Kine v. Def- 
enbaugh, 64 111. 291 ; People o. Hoge, 65 
Cal (>12 ; Rowan v. Runnels, 5 How. 134; 
Friedman v. Mathes, 8 Heisk. 488 ; John- 
son v. Parkersburgh, 16 W. Va. 402, 37 
Am. Rep. 779; De Turk v. Com., 129 
Pa. St. 161, 18 All. Rep. 757. 

2 Friedman v. Mathes, 8 Heisk. 488 ; 
State c. Weston, 4 Neb. 216; People v. 
Hoge, 55 Cal. 612 ; Ewing v. Orville M. 
Co., 56 Cal. 649 ; Hills v. Chicago, 64 111. 
86. A provision imposing a duty upon 
an officer is self-executing. State v. Bab- 
cock, 19 Neb. 230, 27 N. W. 98. So, one 
providing for jury trial in all of a certain 
class of cases. Woodward Iron Co. v. 
Cabaniss, 87 Ala. 328, 6 So. 300. So 
one providing that compensation shall 
be given for property " damaged " in the 
course of a public improvement. House- 
holder v. Kansas City, 83 Mo. 488. FJSo 



one providing that "knowledge, by any 
employee injured, of the defective or 
unsafe character or conditions of any 
machinery, ways or appliances, shall 
be no defence to an action for injury 
caused thereby." Illinois C. R. Co. v. 
Ihlenberg. 75 Fed. Rep. 873, 34 L. R. A. 
393. That justices of peace in cities 
above 6,000 shall be paid by salaries in- 
stead of fees. Anderson v. Whatcom 
County, 15 Wash. 47, 45 Pac. 665, 33 
L. R. A. 137. That civil service appoint- 
ments " shall be made according to merit 
and fitness, to be ascertained, so far as 
practicable, by examinations which so 
far as practicable shall be competitive." 
People v. Roberts, 148 N. Y. 360, 42 N. E. 
1082, 31 L. R. A. 399. That no person 
shall hold a State and a federal office at 
the same time. De Turk v. Com., 129 Pa. 
151, 18 All. 757, 5 L. R. A. 853, 15 Am. 
St. 705. Authorization of tax by an elec- 
tion. Logan o. Ouachita Parish, 105 La. 
499, 29 So. 975.] 

8 Wall, Ex parte, 48 Cal. 279; Attor- 
ney-General v. Common Council of 
Detroit, 29 Mich. 108. For exemption 
provisions, not self-executing, see Green 
v. Aker, 11 Ind. 223; Speidel v. Schlosser, 
13 W. Va. 686. 



(a) [The Constitution of the State of Kansas of 1859, art. 12, 2, provides as 
follows: " Dues from corporations shall be secured by individual liability of the stock- 
holders to an additional amount equal to the stock owned by each stockholder ; and such 
other means as shall be provided by law ; . . ." The portion italicized is self-ex- 
ecuting, and enters as a part of the contractual liability of every person who volun- 



122 CONSTITUTIONAL LIMITATIONS. [CH. IV. 

The provisions exempting homesteads from forced sale for the 
satisfaction of debts furnish many illustrations of self-executing 
provisions, and also of those which are not self-executing. 
Where, as in California, the constitution declares that "the 
legislature shall protect by law from forced sale a certain 
portion of the homestead and other property of all heads of 
families," the dependence of the provision on subsequent legis- 
lative action is manifest. But where, as in some other States, 
the constitution defines the extent, in acres or amount, that shall 
be deemed to constitute a homestead, and expressly exempts 
from any forced sale what is thus defined, a rule is prescribed 
whicli is capable of enforcement. Perhaps even in such cases, 
legislation may be desirable, by way of providing convenient 
remedies for the protection of the right secured, or of regulating 
the claim of the right so that its exact limits may be known and 
understood ; but all such legislation must be subordinate to the 
constitutional provision, and in furtherance of its purpose, and 
must not in any particular attempt to narrow or embarrass it. 
The provision of a constitution which defines a homestead and 
exempts it from forced sale is self-executing, at least to this 
extent, that, though it may admit of supplementary legislation 
in particulars where in itself it is not as complete as may be 
desirable, it will override and nullify whatever legislation, 
either prior or subsequent, would defeat or limit the homestead 
which is thus defined and secured. 

We have thus indicated some of the rules which we think are 
to be observed in the construction of constitutions. It will be 
perceived that we have not thought it important to quote and to 

tarily becomes a stockholder in any corporation (except railroad, charitable, and 
religious corporations, expressly excepted in later part of above section) created 
under the laws of Kansas. Whitman v. National Bank of Oxford, 176 U. S. 559, 20 
Sup. Ct. Rep. 477, nff. 76 Fed. Rep. 697, and 51 U. S. App. 536, 83 Fed. Rep. 288, 28 
C. C. A. 404. But see Woodworth i>. Bowles, 61 Kan. 669, 60 Pac. 331, in which it 
is said that the use of the future tense " shall be secured " indicates that the constitu- 
tional clause above given is not self-executing. The " double liability clause" of the 
Minnesota Constitution, which provides that " each stockholder in any corporation 
(excepting those organized for the purpose of carrying on any kind of manufactur- 
ing or mechanical business) shall be liable to the amount of stock held or owned by 
him " is held to create expropris vigore an individual liability on the part of each stock- 
holder. Willis v. Mabon, 48 Minn. 140, sub nom. Willis v. St. Paul Sanitation Co., 
50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. 626. So too no supplementary legislation 
is needed to make effective the provision of the Nebraska Constitution dpclaring that 
"every stockholder in a banking corporation or institution shall be individually re- 
sponsible and liable to its creditors, over and above the amount of stock by him held, 
to an amount equal to his respective stock or shares so held, for all its " liabilities ac- 
cruing while he remains such stockholder." Farmers' Loan and T. Co. v. Funk, 49 
Neb. 353, 68 N. W. 520. In this connection, see note appended to 44 L. ed. U. S. 589, 
and another on self-executing constitutional provisions in 16 L. R. A. 281.] 



Oil. IV.] CONSTRUCTION OF STATE CONSTITUTIONS. 



123 



dwell upon those arbitrary rules to which so much attention is 
sometimes given, and which savor rather of the closet than of 
practical life. Our observation would lead us to the conclusion 
that they are more often resorted to as aids in ingenious attempts 
to make the constitution seem to say what it does not, than with 
a view to make that instrument express its real intent. All 
external aids, and especially all arbitrary rules, applied to 
instruments of this popular character, are of very uncertain 
value ; and we do not regard it as out of place to repeat here 
what we have had occasion already to say in the course of this 
chapter, that they are to be made use of with hesitation, and 
only with much circumspection. 1 



1 See People v. Cowles, 13 N. T. 350, 
per Johnson, J. ; Temple v. Mead, 4 Vt. 535, 
540, per Williams, J. ; People v. Fancher, 
50 N. Y. 291. " In construing so impor- 
tant an instrument as a constitution, espe- 
cially those parts which affect the vital 
principle of a republican government, the 
elective franchise, or the manner of exer- 
cising it, we are not, on the one hand, to 
indulge ingenious speculations which may 
lead us wide from the true sense and 
spirit of the instrument, nor, on the other, 
to apply to it such narrow and constrained 
views as may exclude the real object and 
intent of those who framed it. We are 
to suppose that the authors of such an 
instrument had a thorough knowledge of 
the force and extent of the words they 
employ ; that they had a beneficial end 
and purpose in view ; and that, more es- 
pecially in any apparent restriction upon 
the mode of exercising the right of suf- 
frage, there was some existing or antici- 
pated evil which it was their purpose to 
avoid. If an enlarged sense of any par- 
ticular form of expression should be neces- 
sary to accomplish so great an object as 
a convenient exercise of the fundamental 
privilege or right, that of election, 



such sense must be attributed. We are 
to suppose that those who were delegated 
to the great business of distributing the 
powers which emanated from the sov- 
ereignty of the people, and to the estab- 
lishment of the rules for the perpetual 
security of the rights of person and prop- 
erty, had the wisdom to adapt their 
language to future as well as existing 
emergencies, so that words competent to 
the then existing state of the community, 
and at the same time capable of being 
expanded to embrace more extensive re- 
lations, should not be restrained to their 
more obvious and immediate sense, if, 
consistently with the general object of 
the authors and the true principles of the 
compact, they can be extended to other 
relations and circumstances which an 
improved state of society may produce. 
Qui hasret in litera hceret in cortice is a 
familiar maxim of the law. The letter 
killeth, but the spirit maketh alive, is the 
more forcible expression of Scripture." 
Parker, Ch. J., in Henshaw v. Foster, 9 
Pick. 312, 316. There are some very 
pertinent and forcible remarks by Mr. 
Justice Miller on this general subject in 
Woodson v. Murdock, 22 Wall. 351, 381- 



124 CONSTITUTIONAL LIMITATIONS. [CH. V. 



CHAPTER V. 

OF THE POWERS WHICH THE LEGISLATIVE DEPARTMENT MAY 

EXERCISE. 

IN considering the powers which may be exercised by the 
legislative department of one of the American States, it is 
natural that we should recur to those possessed by the Parlia- 
ment of Great Britain, after which, in a measure, the American 
legislatures have been modelled, and from which we derive our 
legislative usages and customs, or parliamentary common law, 
as well as the precedents by which the exercise of legislative 
power in this country has been governed. It is natural, also, 
that we should incline to measure the power of the legislative 
department in America by the power of the like department in 
Britain; and to concede without reflection that whatever the 
legislature of the country from which we derive our laws can 
do, may also be done by the department created for the exercise 
of legislative authority in this country. But to guard against 
being misled by a comparison between the two, we must bear in 
mind the important distinction already pointed out, that with 
the Parliament rests practically the sovereignty of the country, 
so that it may exercise all the powers of the government if it 
wills so to do; while on the other hand the legislatures of the 
American States are not the sovereign authority, and, though 
vested with the exercise of one branch of the sovereignty, they 
are nevertheless, in wielding it, hedged in on all sides by im- 
portant limitations, some of which are imposed in express terms, 
and others by implications which are equally imperative. 

" The power and jurisdiction of Parliament, says Sir Edward 
Coke, 1 is so transcendent and absolute, that it cannot be con- 
fined, either for persons or causes, within any bounds. And of 
this high court it may truly be said: 'Si antiquitatem spectes, 
est vetustissima; si dignitatem, est honoratissima; si jurisdic- 
tionem, est capacissima. ' It hath sovereign and uncontrolled 
authority in the making, confirming, enlarging, restraining, 
abrogating, repealing, reviving, and expounding of laws, con- 
cerning matters of all possible denominations, ecclesiastical or 

* 4 Inst. 36. 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 125 

temporal, civil, military, maritime, or criminal ; this being the 
place where that absolute despotic power, which must in all 
governments reside somewhere, is intrusted by the constitution 
of these kingdoms. All mischiefs and grievances, operations 
and remedies, that transcend the ordinary course of the laws, 
are within the reach of this extraordinary tribunal. It can 
regulate or new-model the succession to the Crown, as was done 
in the reign of Henry VIII. and William III. It can alter the 
established religion of the land, as was done in a variety of 
instances, in the reigns of King Henry VIII. and his three 
children. It can change and create afresh even the constitution 
of the kingdom and of Parliaments themselves, as was done by 
the Act of Union, and the several statutes for triennial and 
septennial elections. It can, in short, do everything that is not 
naturally impossible; and therefore some have not scrupled to 
call its power, by a figure rather too bold, the omnipotence of 
Parliament. True it is, that what the Parliament doth, no 
authority upon earth can undo; so that it is a matter most 
essential to the liberties of this kingdom that such members be 
delegated to this important trust as are most eminent for their 
probity, their fortitude, and their knowledge ; for it was a known 
apothegm of the great Lord Treasurer, Burleigh, 'that England 
could never be ruined but by a Parliament; ' and as Sir Matthew 
Hale observes : ' This being the highest and greatest court, over 
which none other can have jurisdiction in the kingdom, if 
by any means a misgovernment should anyway fall upon it, 
the subjects of this kingdom are left without all manner of 
remedy. ' " 1 

The strong language in which the complete jurisdiction of 
Parliament is here described is certainly inapplicable to any 
authority in the American States, unless it be to the people of 
the States when met in their primary capacity for the formation 

1 Bl. Com. 160 ; Austin on Jurispru- subordinate to it. It may participate in 

dence, Lee. 6; Fischel on English Con- making changes as the constitution it- 

stitution, b. 7, ch. 7. The British legisla- self may provide, but not otherwise, and 

ture is above the constitution, and moulds constitutional principles which the Brit- 

and modifies it at discretion as public ex- ish Parliament will deal with as shall 

igencies and the needs of the time may seem needful are inflexible laws in 

require. But in the American system such America until the people, under the forms 

a thing as unlimited power is unknown, provided for constitutional amendments, 

Loan Association v. Topeka, 20 Wall, see fit to change them. Such radical 

655, 663; Campbell's Case, 2 Bland Ch. changes, for example, as recently have 

209, 20 Am. Dec. 360; [^Missouri Pac. been made in the Irish land laws, and 

II. Co. v. Nebraska, Bd. of Transp., such forced modification in contracts, 

164 U. S. 403, 17 Sup. Ct. Rep. 130J would be impossible in the United States 

Every American legislature is the crea- without a change in both Federal and 

ture of the constitution, and strictly State constitutions. 



126 CONSTITUTIONAL LIMITATIONS. [CH. V. 

of their fundamental law ; and even then there rest upon them 
the restraints of the Constitution of the United States, which 
bind them as absolutely as they do the governments which they 
create. It becomes important, therefore, to ascertain in what 
respect the State legislatures resemble the Parliament in the 
powers they exercise, and how far we may extend the compari- 
son without losing sight of the fundamental ideas and principles 
of the American system. 

The first and most notable difference is that to which we have 
already alluded, and which springs from the different theory on 
which the British Constitution rests. So long as the Parliament 
is recognized as rightfully exercising the sovereign authority of 
the country, it is evident that the resemblance between it and 
American legislatures in regard to their ultimate powers cannot 
be traced very far. The American legislatures only exercise a 
certain portion of the sovereign power. The sovereignty is in 
the people; 1 and the legislatures which they have created are 
only to discharge a trust of which they have been made a de- 
positary, but which has been placed in their hands with well- 
defined restrictions. 

Upon this difference it is to be observed, that while Parliament, 
to any extent it may choose, may exercise judicial authority, 
one of the most noticeable features in American constitutional 
law is the care which has been taken to separate legislative, 
executive, and judicial functions. It has evidently been the 
intention of the people in every State that the exercise of each 
should rest with a separate department. The different classes 
of power have been apportioned to different departments ; and 
as all derive their authority from the same instrument, there is 
an implied exclusion of each department from exercising the 
functions conferred upon the others. 

There are two fundamental rules by which we may measure 
the extent of the legislative authority in the States: 

1. In creating a legislative department and conferring upon 
it the legislative power, the people must be understood to have 
conferred the full and complete power as it rests in, and may be 
exercised by, the sovereign power of any country, subject only 
to such restrictions as they may have seen fit to impose, and to 
the limitations which are contained in the Constitution of the 
United States. The legislative department is not made a special 
agency for the exercise of specifically defined legislative powers, 
but is intrusted with the general authority to make laws at 
discretion. 

i Ante, p. 114. 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 127 

2. But the apportionment to this department of legislative 
power does not sanction the exercise of executive or judicial 
functions, except in those cases, warranted by parliamentary 
usage, where they are incidental, necessary, or proper to the 
exercise of legislative authority, or where the constitution 
itself, in specified cases, may expressly permit it. 1 Executive 
power is so intimately connected with legislative, that it is not 
easy to draw a line of separation; but the grant of the judicial 
power to the department created for the purpose of exercising 
it must be regarded as an exclusive grant, covering the whole 
power, subject only to the limitations which the constitutions 
impose, and to the incidental exceptions before referred to. 2 
While, therefore, the American legislatures may exercise the 
legislative powers which the Parliament of Great Britain wields, 
except as restrictions are imposed, they are at the same time 
excluded from other functions which may be, and sometimes 
habitually are, exercised by the Parliament. 

"The people in framing the constitution," says Denio, Ch. J., 
"committed to the legislature the whole lawmaking power of 
the State, which they did not expressly or impliedly withhold. 
Plenary power in the legislature, for all purposes of civil gov- 
ernment, is the rule. A prohibition to exercise a particular 
power is an exception. In inquiring, therefore, whether a given 
statute is constitutional, it is for those who question its validity 
to show that it is forbidden. I do not mean that the power 
must be expressly inhibited, for there are but few positive re- 
straints upon the legislative power contained in the instrument. 
The first article lays down the ancient limitations which have 
always been considered essential in a constitutional government, 
whether monarchial or popular ; and there are scattered through 
the instrument a few other provisions hi restraint of legislative 
authority. But the affirmative prescriptions and the general 
arrangements of the constitution are far more fruitful of re- 
straints upon the legislature. Every positive direction contains 
an implication against anything contrary to it, or which would 
frustrate or disappoint the purpose of that provision. The frame 

1 See post, pp. 134-162, 531, 632. A statute attempting to confer upon a 
([And even where the power is legisla- State board authority to adjudge priori- 
live, if the Constitution lias limited its ties of claimants to the use of public 
exercise to certain times, the attempt to waters is held not to be unconstitutional 
exercise it at other times is necessarily as conferring judicial power in Farm 
void. Harmison t. Ballot Com'rs of Jef- Investment Co. v. Carpenter, 9 Wyo. 
ferson Co., 45 W. Va. 179, 31 S. E. 394, 110, 61 Pac. 258, 87 Am. St. 918.] 
42 L. R. A. 591; Denney v. State, 144 2 See post, p. 129, note. 
Ind. 503, 42 N. E. 929, 31 L. B. A. 726. 



128 CONSTITUTIONAL LIMITATIONS. [CH. V. 

of the government, the grant of legislative power itself, the 
organization of the executive authority, the erection of the prin- 
cipal courts of justice, create implied limitations upon the law- 
making authority as strong as though a negative was expressed 
in each instance; but independently of these restraints, express 
or implied, every subject within the scope of civil government 
is liable to be dealt with by the legislature." 1 

"It has never been questioned, so far as I know," says Red- 
field, Ch. J., "that the American legislatures have the same 
unlimited power in regard to legislation which resides in the 
British Parliament, except where they are restrained by written 
constitutions. That must be conceded, I think, to be a funda- 
mental principle in the political organizations of the American 
States. We cannot well comprehend how, upon principle, it 
should be otherwise. The people must, of course, possess all 
legislative power originally. They have committed this in the 
most general and unlimited manner to the several State legis- 
latures, saving only such restrictions as are imposed by the 
Constitution of the United States, or of the particular State in 
question. " 2 

"I entertain no doubt," says Comstoclc, J., "that, aside from 
the special limitations of the constitution, the legislature cannot 
exercise powers which are in their nature essentially judicial or 
executive. These are, by the constitution, distributed to other 
departments of the government. It is only the ' legislative 
power ' which is vested in the senate and assembly. But where 
the constitution is silent, and there is no clear usurpation of 
the powers distributed to other departments, I think there would 
be great difficulty and great danger in attempting to define the 
limits of this power. Chief Justice Marshall said : ' How far 
the power of giving the law may involve every other power, in 
cases where the constitution is silent, never has been, and per- 
haps never can be, definitely stated. ' 3 That very eminent judge 

1 People v Draper, 15 N. T. 532, 543. 140, per Branson, J. ; State v. Reid, 1 Ala. 

2 Thorpe v Rutland & Burlington Rail- 612, 35 Am. Dec. 44 ; Andrews v. State, 
road Co., 27 Vt. 140, 142. See also 3 Heisk. 165 ; Knoxville, &c. R. R. Co. v. 
Adams v. Howe, 14 Mass. 340, 14 Am. Hicks, 9 Bax. 442 ; Lewis's Appeal, 67 
Dec. 216 ; People v. Rucker, 5 Col. 455 ; Pa. St. 153 ; Walker v. Cincinnati, 21 
People v. Osborne, 7 Col. 605, 4 Pac. Ohio St. 14; People v. Wright, 70 111. 
1074; Leggett v. Hunter, 19 N. Y. 445; 388. That the rule as to the extent of 
Cochran v. Van Surlay, 20 Wend. 365 ; legislative power is substantially the 
People v. Morrell, 21 Wend. 563; Sears same in Canada, see Valin v. Langlois, 
v. Cottrell, 5 Mich. 251 ; Beauchamp v. 3 Can. Sup. Ct. 1 ; Mayor, &c. v. The 
State, 6 Blackf. 299 ; Mason v. Wait, 5 Queen, 3 Can. Sup. Ct. 505. 

Ill 127 ; People v. Supervisors of Orange, 8 Fletcher v. Peck, 6 Cranch, 87, 136. 
27 Barb. 575; Taylor v. Porter, 4 Hill, 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 129 



felt the difficulty ; but the danger was less apparent then than it 
is now, when theories, alleged to be founded in natural reason 
or inalienable rights, but subversive of the just and necessary 
powers of government, attract the belief of considerable classes 
of men, and when too much reverence for government and law 
is certainly among the least of the perils to which our institu- 
tions are exposed. I am reluctant to enter upon this field of 
inquiry, satisfied, as I am, that no rule can be laid down in 
terms which may not contain the germ of great mischief to 
society, by giving to private opinion and speculation a license 
to oppose themselves to the just and legitimate powers of 
government." 1 

Other judicial opinions in great number might be cited in 
support of the same general doctrine ; but as there will be occa- 
sion to refer to them elsewhere when the circumstances under 
which a statute may be declared unconstitutional are considered, 
we refrain from further references in this place. 2 Nor shall 
we enter upon a discussion of the question suggested by Chief 
Justice Marshall, as above quoted ; 3 since, however interesting it 



1 Wynehamer v. People, 13 N. Y. 378, 
391. 

2 See post, p. 237, and cases cited in 
notes. 

3 The power to distribute the judicial 
power, except so far as that has been done 
by the Constitution, rests with the legis- 
lature: Commonwealth v. Hippie, 69 Pa. 
St. 9 ; State v. New Brunswick, 42 N. J. 
61 ; State v. Brown, 71 Mo. 454 ; Jackson 
v. Nimmo, 3 Lea, COS; see Burke v. St. 
Paul, M. &c. Ry. Co., 35 Minn. 172, 28 
N. W. 190; St. Paul v. Umstetter, 37 
Minn. 15, 33 N. W. 115; but when the 
Constitution has conferred it upon cer- 
tain specified courts, this must be un- 
derstood to embrace the whole judicial 
power, and the legislature cannot vest 
any portion of it elsewhere. Greenough 
v. Greenough, 11 Pa. St. 489; State v. 
Maynard, 14 111. 420; Gibson v. Emer- 
son, 7 Ark. 172; Chandler v. Nash, 5 
Mich. 409; Succession of Tanner, 22 La. 
Ann. 90; Gough r. Dorsey, 27 Wis. 119; 
Van Slyke v. Ins. Co., 39 Wis. 390, 20 
Am. Rep. 50; Alexander v. Bennett, 60 
N. Y. 204; People v. Young, 72 111. 411 ; 
Jn re Cleveland, 51 N. J. L. 311, 17 Atl. 
772; Risser v. Hoyt, 53 Mich. 185, 18 
N. W. 611 ; Shoultz v. McPheeters, 79 
Ind. 373. QAnd when the Constitution 
gives the court appellate jurisdiction 



only, except in certain specified cases, 
the legislature cannot enlarge the origi- 
nal jurisdiction of the court. Klein v. 
Valerius, 87 Wis. 54, 57 N. W. 1112, 22 
L. "R. A. 609. Nor can the legislature 
redistribute the judicial power. Brown 
v. Circuit Judge, 75 Mich. 274, 42 N. W. 
827, 6 L. R. A. 226, 13 Am. St. 438; 
Watson v. Blackstone, 98 Va. 618, 38 S. E. 
939. Cannot confer the power of the 
court upon a single judge thereof. State 
v. Woodson, 161 Mo. 444, 61 S. W. 252. 
Congress may provide that the determi- 
nation by the treasury department of 
whether an alien is entitled to land shall 
be final. Nishimura Ekiu v. U. S., 142 
U. S. 651, 12 Sup. Ct. Rep. 336.] The 
legislature cannot select persons to assist 
courts in the performance of their duties 
and act as a commission of appeal. State 
. Noble, 118 Ind. 350, 21 N. E. 244; 
In re Courts of Appeals, 9 Col. 623, 21 
Pac. 471. Courts established by the leg- 
islature cannot exercise jurisdiction to 
the exclusion of that conferred by the 
Constitution on other courts. Montross 
v. State, 61 Miss. 429. See State v. Butt, 
25 Fla. 258, 6 So. 597. But a general pro- 
vision in the Constitution for the distri- 
bution of the judicial power, not referring 
to courts-martial, would not be held to 
forbid such courts by implication. People 



130 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



may be as an abstract question, it is made practically unimpor- 
tant by the careful separation of powers and duties between the 



v. Daniell, 50 N. Y. 274. Nor would it be 
held to embrace administrative functions 
of a quasi judicial nature, such as the as- 
sessment of property for taxation. State 
i?. Commissioners of Ormsby County, 7 
Nov.. 392, and cases cited. See Auditor 
of State v. Atchison, &c. R. R. Co., 6 Kan. 
600, 7 Am. Rep. 575. But a court may 
determine whether a proposed local im- 
provement shall be undertaken. Bryant 
r. Robbing, 70 Wis. 258, 35 N. W. 545. 
QA judge of a superior court cannot be 
required or empowered to pass upon and 
modify or approve a plan for the location 
of a street railway. Norwalk Street R. 
Co 's Appeal, 69 Conn. 576, 37 Atl. 1080, 
39 L. It. A. 794; nor a court to direct 
how a telegraph or telephone company 
may use the streets of a city. Zanesville 
v. Zanesville T. & Tel. Co., 63 Ohio, 442, 
69 N. E. 109 (Oct. 16, 1900) ; New York 
& N. J. Tel. Co. v. Mayor of Bound 
Brook, 66 N. J. L. 168, 48 Atl. 1022. 
County board cannot determine which 
rooms in court house shall be occupied 
by certain judges. Dahnke v. People, 
168 111. 102, 48 N. E. 137, 39 L. R. A. 
197. Court during its session has full 
control over that portion of court house 
necessary to the convenient transaction 
of its business. Vigo County v. Stout, 
186 Ind. 53, 35 N. E. 683, 22 L. R. A. 398, 
ii ml note ; and may order repairs to court 
house, although it cannot order the erec- 
tion of additions thereto or the rebuilding 
thereof. White County v. Gwin, 136 Ind. 
662, 36 N. E. 237, 22 L. R. A. 402.] It is 
not competent to confer upon the courts 
the power to tax : Monday v. Rahway, 43 
N. J. 338 ; nor to impose on them admin- 
istrative duties. Houseman v. Kent Circ. 
Judge, 58 Mich. 364, 25 N. W. 369. But 
after thirty-five years of exercise of such 
power under a statute, it is too late to 
object. Locke v. Speed, 62 Mich. 408, 
28 N. W. 917. [The legislature cannot 
create a " court of visitation " for the con- 
trol of corporations and endow it with 
executive, legislative, and judicial powers. 
State v. Johnson, 61 Kan. 803, 60 Pac. 
1068, 49 L. R. A. 662. Nor can it consti- 
tute a board of State auditors, which is a 
purely executive board, a court of review 
to pass upon the rightfulness of a convic- 



tion of crime, and in case conviction be 
found wrongful to allow damages for the 
imprisonment consequent thereupon. Al- 
len v. Board of State Auditors, 122 Mich. 
324, 81 N. W. 113, 47 L. R. A. 117, 80 Am. 
St. 573.] The power to appoint election 
commissioners not having been expressly 
conferred on any department, the legisla- 
ture may impose the duty of appointment 
on the county court. People v. Hoffman, 
116 111. 587, 5 N. E. 596, 8 N. E. 788. 
Such appointments are upheld in In re 
Citizens of Cincinnati, 2 Flipp. 228; Rus- 
sell v. Cooley, 69 Ga. 215. But in Super- 
visors of Election, 114 Mass. 247, 19 Am. 
Rep. 341, a contrary doctrine is laid 
down. A chief justice cannot be empow- 
ered to determine which claimant of an 
office shall hold it pending a contest. 
Such power, if executive, cannot be given 
a judge; if judicial, belongs to a court. 
In re Cleveland, 51 N. J. L. 311, 17 Atl. 
772. The legislature cannot require a 
court to give its opinions in writing: 
Vaughn v. Harp, 49 Ark. 160, 4 S. W. 
751 ; nor to write syllabi to its decisions. 
In re Griffiths, 118 Ind. 83, 20 N. E. 513. 
[Jit is held in Illinois that the legisla- 
ture cannot interfere with the power of 
the courts to regulate the licensing of 
attorneys. Re Day, 181 111. 73, 54 N. E. 
646, 50 L. R. A. 519. See also Re Leach, 
134 Ind. 665, 34 N. E. 641, 21 L. R. A. 
701. The legislature cannot define what 
shall be considered a contempt of court. 
Bradley v. State, 111 Ga. 168, 36 S. E. 
630, 50 L. R. A. 691, 78 Am. St. 157 ; Hale 
v. State, 55 Ohio St. 210, 45 N. E. 199, 36 
L. R. A. 254, and note, 60 Am. St. 691. 
On the other hand, a court has no power 
to enjoin a legislative body. State v. 
Superior Court of Milwaukee Co., 105 
Wis. 651, 81 N. W. 1046, 48 L. R. A. 819. 
But see Roberts v. Louisville, 92 Ivy. 
95, 17 S. W. 216, 13 L. R. A. 844, and 
note. Nor has a court power to deter- 
mine whether or not a senator of the 
State legislature whose term has not 
yet expired, has disqualified himself from 
further acting as senator. Covington r. 
Buffett, 90 Md. 569, 45 Atl. 204, 47 L. R. 
A. 622. Not to establish rules and regu- 
lations for the extension of telephone 
lines. Michigan Tel. Co. v. St. Joseph, 



CH. V.] POWERS EXEKCISED BY LEGISLATIVE DEPAETMENT. 131 

several departments of the government which has been made hy 
each of the State constitutions. Had no such separation been 
made, the disposal of executive and judicial duties must have 
devolved upon the department vested with the general authority 
to make laws; 1 but assuming them to be apportioned already, 
we are only at liberty to liken the power of the State legislature 
to that of the Parliament, when it confines its action to an exer- 
cise of legislative functions ; and such authority as is in its nature 
either executive or judicial is beyond its constitutional powers, 
with the few exceptions to which we have already referred. 

It will be important therefore to consider those cases where 
legislation has been questioned as encroaching upon judicial 
authority ; and to this end it may be useful, at the outset, to 
endeavor to define legislative and judicial power respectively, 
that we may the better be enabled to point out the proper line 
of distinction when questions arise in their practical application 
to actual cases. 

The legislative power we understand to be the authority, 
under the Constitution, to make laws, and to alter and repeal 
them. Laws, in the sense in which the word is here employed, 
are rules of civil conduct, or statutes, which the legislative will 
has prescribed. " The laws of a State," observes Mr. Justice 
Story, "are more usually understood to mean the rules and 
enactments promulgated by the legislative authority thereof, or 
long-established local customs having the force of laws." 2 " The 
difference between the departments undoubtedly is, that the 
legislature makes, the executive executes, and the judiciary 

121 Mich. 502, 80 N. W. 383, 47 L. R. A. of a system of sewerage without prescrib- 

87, 80 Am. St. 520. Upon distinction be- ing any further direction for such appor- 

tween legislative and judicial powers, see tionment than that it shall be just and 

Re Janvrin, 174 Mass. 514, 55 N. E. 381, equitable. Re Kingman, 153 Mass. 566, 

47 L. R. A. 319. The legislature has no 27 N. E. 778, 12 L. R. A. 417. The tegis- 

power to make a conclusive finding of lature cannot validate warrants issued 

facts, and thereupon direct a municipal- under an unconstitutional law. Felix 

ity to pay a specified claim. Board of v. Wallace Co. Com'rs, 62 Kan. 832, 62 

Edn. v. State, 51 Ohio St. 531, 38 N. E. Pac. 667, 84 Am. St. 424. Congress may 

614, 25 L. R. A. 770, 46 Am. St. 588. provide that inspectors of customs may 

Where the legislature is authorized to finally determine whether immigrants are 

regulate the method of procedure in entitled to land. Nishimura Kkiu w. 

"Courts below the Supreme Court" it United States, 142 U. S. 651, 12 Sup. Ct. 

has no power over procedure in the Su- Rep. 336.] 

preme Court. Herndon v. Imperial Fire 1 Calder v. Bull, 2 Root, 350, and 3 

Ins. Co., Ill N. C. 384, 16 S. E. 465, 18 Dall. 386; Ross v. Whitman, 6 Cal. 361 ; 

L. R. A. 647. The legislature can direct Smith v. Judge, 17 Cal. 547; per Patter- 

a court to appoint certain commissioners son, J., in Cooper v. Telfair, 4 Dall. 19; 

and confer upon the commissioners so Martin v. Hunter's Lessee, 1 Wheat. 304. 

to be appointed the power to apportion 2 Swift v. Tyson, 16 Pet. 18. 
among several cities and towns the cost 



132 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



construes, the law." 1 And it is said that that which distin- 
guishes a judicial from a legislative act is, that the one is a 
determination of what the existing law is in relation to some 
existing thing already done or happened, while the other is a 
predetermination of what the law shall be for the regulation of 
all future cases falling under its provisions. 2 And in another 
case it is said: "The legislative power extends only to the mak- 
ing of laws, and in its exercise it is limited and restrained by 
the paramount authority of the federal and State constitutions. 
It cannot directly reach the property or vested rights of the 
citizen by providing for their forfeiture or transfer to another, 
without trial and judgment in the courts ; for to do so would be 
the exercise of a power which belongs to another branch of the 
government, and is forbidden to the legislative." 3 "That is 
not legislation which adjudicates in a particular case, prescribes 
the rule contrary to the general law, and orders it to be enforced. 
Such power assimilates itself more closely to despotic rule than 
any other attribute of government." 4 

On the other hand, to adjudicate upon, and protect the rights 
and interests of individual citizens, and to that end to construe 
and apply the laws, is the peculiar province of the judicial de- 
partment. 5 "No particular definition of judicial power," says 



1 Per Marshall, Ch. J., in Wayman v. 
Southard, 10 Wheat. 46 ; per Gibson, Ch. 
J., in Greenougli v. Greenough, 11 Pa. 
St. 494. See Governor v. Porter, 7 
Humph. 165; State v. Gleason, 12 Fla. 
190; Hawkins v. Governor, 1 Ark. 570; 
Westinghausen v. People, 44 Mich. 265, 
6 N. W. 641. 

2 Bates v Kimball, 2 Chip. 77. A 
prospective determination by a court of 
the validity of school rules, compiled un- 
der legislative authority, is not an exer- 
cise of judicial power. In re School Law 
Manual, 63 N. H. 574, 4 Atl. 878. Power 
to supersede an ordinance upon petition 
of taxpayers as contrary to law cannot 
be conferred upon a court : Shephard v. 
Wheeling, 30 W.'Va. 479, 4 S. E. 635; 
nor to fix the salary of a reporter in ad- 
vance : Smith v. Strother, 68 Cal. 194, 8 
Pac. 852 ; nor to make upon its own whim 
a party a competent witness who other- 
wise would not be. Tillman r. Cocke, 9 
Bax. 429. 

3 Newland v. Marsh, 19 111. 383. 

4 Ervine's Appeal, 16 Pa. St. 256, 266. 
See also Greenough v. Greenougli, 11 
Pa. St. 489; Dechastellux v. Fairchild, 



15 Pa. St. 18 ; Trustees, &c. v. Bailey, 10 
Fla. 238. 

6 Cincinnati, &c. Railroad Co. v. Com- 
missioners of Clinton Co., 1 Ohio St. 77. 
See also King v. Dedham Bank, 15 Mass. 
447 ; Gordon v. Ingraham, 1 Grant's Cases, 
152; People v. Supervisors of New York, 

16 N. Y. 424 ; Beebe v. State, 6 Ind. 501 ; 
Greenough v. Greenough, 11 Pa. St. 489; 
Taylor v. Place, 4 R. I. 324. It is also a 
part of the function of the judiciary to 
determine whether a proposed constitu- 
tional amendment has been in fact adopted 
under the forms prescribed for such case 
by the constitution, and the legislative 
declaration that it has been so adopted is 
null. State v. Powell, 77 Miss. 543, 27 
So. 927, 48 L. R. A. 652. But see Worman 
v. Hagan, 78 Md. 152, 27 Atl. 616, 21 L. 
R. A. 716, to effect that governor's procla- 
mation of adoption is conclusive. It is 
also a proper function of a court to re- 
quire proper authorities to prescribe rules 
and regulations for extension of telephone 
lines, and to pass upon the validity of such 
rules when properly brought in question. 
Mich. Tel. Co. v. St. Joseph, 121 Mich. 
502, 80 N. W. 383, 47 L. R. A. 87, 80 Am. 
St. 520.] 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 133 

Woodbury, J., "is given in the constitution [of New Hampshire], 
and, considering the general nature of the instrument, none was 
to be expected. Critical statements of the meanings in which 
all important words were employed would have swollen into 
volumes ; and when those words possessed a customary significa- 
tion, a definition of them would have been useless. But 'powers 
judicial,' ' judiciary powers,' and ' judicatories ' are all phrases 
used in the constitution; and though not particularly defined, 
are still so used to designate with clearness that department of 
government which it was intended should interpret and admin- 
ister the laws. On general principles, therefore, those inquiries, 
deliberations, orders, and decrees, which are peculiar to such a 
department, must in their nature be judicial acts. Nor can they 
be both judicial and legislative; because a marked difference 
exists between the employments of judicial and legislative 
tribunals. The former decide upon the legality of claims and 
conduct, and the latter make rules upon which, in connection 
with the constitution, those decisions should be founded. It is 
the province of judges to determine what is the law upon exist- 
ing cases. In fine, the law is applied by the one, and made by 
the other. To do the first, therefore, to compare the claims 
of parties with the law of the land before established, is in its 
nature a judicial act. But to do the last to pass new rules 
for the regulation of new controversies is in its nature a 
legislative act; and if these rules interfere with the past, or the 
present, and do not look wholly to the future, they violate the 
definition of a law as 'a rule of civil conduct; ' 1 because no rule 

1 1 Bl. Com. 44. The distinction be- vested in the courts. People v. Stuart, 
tween legislative and judicial power lies 74 Mich. 411, 41 N. W. 1091. See Brown 
between a rule and a sentence. Shrader, v. Duffus, 66 Iowa, 193, 23 N. W. 396. 
Ex parte, 33 Cal. 279. See Shumway v. It is not an infringement of judicial power 
Bennett, 29 Mich. 451 ; Supervisors of to enact that a jury shall assess the pun- 
Election, 114 Mass 247. The legislature ishment in a murder case. State v. Hock- 
cannot empower election boards to decide ett, 70 Iowa, 442, 30 N. W. 742; nor that 
whether one by duelling has forfeited his persons sentenced to jail may be employed 
right to vote or hold office. Common- on roads by county commissioners, under 
wealth c. Jones, 10 Bush, 725; Burkett regulations to be made by them. Holland 
v. McCurty, 10 Bush, 758. But a board v. State, 23 Fla. 123, 1 So. 621. 
may be empowered to recount votes and But it is an invasion of judicial power 
make a statement of results. If they to provide that in case of doubt a statute 
have no power to investigate frauds, they shall be construed so as to save a lien 
do not exercise judicial power. Andrews given by it. Meyer v. Berlandi, 39 Minn. 
v. Carney, 74 Mich. 278, 41 N. W. 923. 438, 40 N. W. 513. Power to declare 
Under a constitutional provision allowing what acts shall be a misdemeanor cannot 
the legislature to provide for removal of be conferred on commissioners of vine 
an election officer for such cause as it culture. Ex parte Cox, 63 Cal. 21. A 
deems proper, the power to determine county clerk cannot fix the amount of 
whether the cause exists need not be bail. Gregory v. State, 94 Ind. 384. 



134 CONSTITUTIONAL LIMITATIONS. [CH. V. 

of conduct can with consistency operate upon what occurred 
before the rule itself was promulgated. 

"It is the province of judicial power, also, to decide private 
disputes between or concerning persons; but of legislative power 
to regulate public concerns, and to make laws for the benefit and 
welfare of the State. Nor does the passage of private statutes 
conflict with these principles ; because such statutes, when law- 
ful, are enacted on petition, or by the consent of all concerned; 
or else they forbear to interfere with past transactions and vested 
rights." 1 

With these definitions and explanations, we shall now proceed 
to consider some of the cases in which the courts have attempted 
to draw the line of distinction between the proper functions of 
the legislative and judicial departments, in cases where it has 
been claimed that the legislature have exceeded their power by 
invading the domain of judicial authority. 

Declaratory Statutes. 

Legislation is either introductory of new rules, or it is declar- 
atory of existing rules. "A declaratory statute is one which is 
passed in order to put an end to a doubt as to what is the com- 

[^Failure of a railroad commissioner to 176 Mass. 71, 55 N. E. 812, 51 L. R. A. 

require a railway company to station a 433. 

flagman at a given crossing cannot be The courts have jurisdiction to pass 

made conclusive proof that the omission upon the claims of rival bodies to be the 

to station such flagman is not negligence. State senate, and to determine which, if 

Grand Trunk R. Co. v. Ives, 144 Q. S. either, is the constitutional senate. At- 

408, 12 ,Sup. Ct. Rep. 679. An adminis- torney-General v. Rogers, 56 N. J. L. 480, 

trative board may be empowered to ad- 28 Atl. 726,29 Atl. 173,23 L. R. A. 354.] 
judicate upon priorities of water-rights l Merrill v. Sherburne, 1 N. H. 199, 

and to make independent investigations 203. See Jones v. Perry, 10 Yerg. 69; 

in regard thereto and to declare its find- Taylor v. Porter, 4 Hill, 140 ; Ogden v. 

ings, provided parties interested in such Blackledge, 2 Cranch, 272 ; Dash v. Van 

adjudications are allowed by the statute Kleek, 7 Johns. 477; Wilkinson v. Leland, 

a reasonable opportunity to appeal there- 2 Pet. 627 ; Leland v. Wilkinson, 10 Pet 

from to the regular courts. Farm In- 294; State v. Hopper, 71 Mo. 425. QA 

vestment Compaq- v. Carpenter, 9 Wyo. statute creating a commission to review 

110, 61 Pac. 258, 50 L. R. A. 747. A a tax assessment to be appointed by the 

ministerial officer may be empowered to circuit judge of the county is not invalid 

investigate land titles, and his findings as vesting judicial power in the commis- 

may be made prima facie evidence. Peo- sion in the sense in which that term is 

pie v. Simon, 176 111. 165, 52 N. E. 910, used in the constitution of Wisconsin. 

44 L. R. A. 801, 68 Am St. 175; for The term as there used has reference 

other case? on Torrens Land Registra- alone to judicial power as exercised in 

tion Acts, see People v. Chase, 165 111. the administration of the law in actions 

527, 46 N. E. 454, 36 L. R. A. 105, and and proceedings in courts of law and 

State v. Guilbert, 56 Ohio St. 575, 47 equity. State ex rel. Ellis v. Thome, 1 12 

N. E. 551, 38 L. R. A. 519, 60 Am. St. Wis. 81, 87 N. W. 797, 55 L. R. A. 956.] 
756 , also Tyler v. Court of Registration, 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 135 

raon law, or the meaning of another statute, and which declares 
what it is and ever has been." 1 Such a statute, therefore, is 
always in a certain sense retrospective; because it assumes to 
determine what the law was before it was passed; and as a. 
declaratory statute is important only in those cases where doubts 
have already arisen, the statute, when passed, may be found to 
declare the law to be different from what it has already been 
adjudged to be by the courts. Thus Mr. Fox's Libel Act declared 
that, by the law of England, juries were judges of the law in 
prosecutions for libel ; it did not purport to introduce a new 
rule, but to declare a rule already and always in force. Yet 
previous to the passage of this act the courts had repeatedly held 
that the jury in these cases were only to pass upon the fact of 
publication and the truth of the innuendoes; and whether the 
publication was libellous or not was a question of law which 
addressed itself exclusively to the court. It would appear, 
therefore, that the legislature declared the law to be what the 
courts had declared it was not. So in the State of New York, 
after the courts had held that insurance companies were taxable 
to a certain extent under an existing statute, the legislature 
passed another act, declaring that such companies were only 
taxable at a certain other rate ; and it was thereby declared that 
such was the intention and true construction of the original 
statute. 2 In these cases it will be perceived that the courts, in 
the due exercise of their authority as interpreters of the 'laws, 
have declared what the rule established by the common law or 
by statute is, and that the legislature has then interposed, put 
its own construction upon the existing law, and in effect declared 
the judicial interpretation to be unfounded and unwarrantable. 
The courts in these cases have clearly kept within the proper 
limits of their jurisdiction, and if they have erred, the error has 
been one of judgment only, and has not extended to usurpation 
of power. Was the legislature also within the limits of its 
authority when it passed the declaratory statute? 

The decision of this question must depend perhaps upon the 
purpose which was in the mind of the legislature in passing the 
declaratory statute; whether the design was to give to the rule 
now declared a retrospective operation, or, on the other hand, 
merely to establish a construction of the doubtful law for the 
determination of cases that may arise in the future. It is always 
competent to change an existing law by a declaratory statute ; 
and where the statute is only to operate upon future cases, it is 

1 Bouv. Law Diet. "Statute;" Austin 2 People v. Supervisors of New York, 
on Jurisprudence, Lect. 37. 16 N. Y. 424. 



136 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



no objection to its validity that it assumes the law to have heen 
in the past what it is now declared that it shall be in the future. 1 
But the legislative action cannot be made to retroact upon past 
controversies, and to reverse decisions which the courts, in the 
exercise of their undoubted authority, have made; for this would 
not only be the exercise of judicial power, but it would be its 
exercise in the most objectionable and offensive form, since 
the legislature would in effect sit as a court of review to which 
parties might appeal when dissatisfied with the rulings of the 
courts. 2 



1 Union Iron Co. v. Pierce, 4 Bias. 327. 

2 In several different cases the courts 
of Pennsylvania had decided that a 
testator's mark to his name, at the foot 
of a testamentary paper, but without proof 
that the name was written by his express 
direction, was not the signature required 
by the statute, and the legislature, to use 
the language of Chief Justice Gibson, 
"declared, in order to overrule it, that 
every last will and testament heretofore 
marie, or hereafter to be made, except 
such as may have been fully adjudicated 
prior to the passage of this act, to which 
the testator's name is subscribed by his 
direction, or to which the testator has 
made his mark or cross, shall be deemed 
and taken to be valid. How this man- 
date to the courts to establish a particular 
interpretation of a particular statute can 
be taken for anything else than an exer- 
cise of judicial power in settling a ques- 
tion of interpretation, I know not. The 
judiciary had certainly recognized a legis- 
lative interpretation of a statute before 
it had itself acted, and consequently be- 
fore a purchaser could be misled by its 
judgment; but he might have paid for a 
title on the unmistakable meaning of 
plain words ; and for the legislature sub- 
sequently to distort or pervert it, and to 
enact that white meant black, or that 
black meant white, would in the same de- 
gree be an exercise of arbitrary and un- 
constitutional power." Greenough v. 
Greenough, 11 Pa. St. 489, 494. The 
act in this case was held void so far as its 
operation was retrospective, but valid as 
to future cases. And see James v. Ro'w- 
land, 42 Md. 462; Reiser v. Tell Associa- 
tion, 39 Pa. St. 137. The constitution 
of Georgia entitled the head of a family to 
enter a homestead, and the courts decided 
that a single person, having no others 



dependent upon him, could not be re- 
garded the head of a family, though 
keeping house with servants. After- 
wards, the legislature passed an act, de- 
claring that any single person living 
habitually as housekeeper to himself 
should be regarded as the head of a fam- 
ily. Held void as an exercise of judicial 
power. Calhoun v. McLendon, 42 Ga. 
405. The fact that the courts had pre- 
viously given a construction to the law 
may show more clearly a purpose in the 
legislature to exercise judicial authority, 
but it would not be essential to that end. 
As is well said in Haley v. Philadelphia, 
68 Pa. St. 45, 47: "It would be mon- 
strous to maintain that where the words 
and intention of an act were so plain that 
no court had ever been appealed to for 
the purpose of declaring their meaning, 
it was therefore in the power of the legis- 
lature, by a retrospective law, to put a 
construction upon them contrary to, the 
obvious letter and spirit. Reiser v. Wil- 
liam Tell Fund Association, 39 Pa. St. 
137, is an authority in point against such 
a doctrine. An expository act of as- 
sembly is destitute of retroactive force, 
because it is an act of judicial power, and 
is in contravention of the ninth section 
of the ninth article of the Constitution, 
which declares that no man can be de- 
prived of his property unless ' by the 
judgment of his peers or the law of the 
land.'" See 8 Am. Rep. 155, 156. And 
on the force and effect of declaratory 
laws in general, see Salters v. Tobias, 3 
Paige, 338 ; Postmaster-General v. Early, 
12 Wheat. 136 ; Union Iron Co. r. Pierce, 
4 Biss. 327 ; Planters' Bank v. Black, 19 
Miss. 43; Gough v. Pratt, 9 Md. 526; 
McNichol v. U. S., &c. Agency. 74 Mo. 
457; Titusville Iron Works v. Keystone 
Oil Co., 122 Pa. St. 627, 15 Atl. 917 ; Steb- 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 137 

As the legislature cannot set aside the construction of the law 
already applied by the courts to actual cases, neither can it 
compel the courts for the future to adopt a particular construc- 
tion of a law which the legislature permits to remain in force. 
"To declare what the law is, or has been is a judicial power; 
to declare what the law shall be, is legislative. One of the 
fundamental principles of all our governments is, that the legis- 
lative power shall be separate from the judicial." 1 If the legis- 
lature would prescribe a different rule for the future from that 
which the courts enforce, it must be done by statute, and cannot 
be done by a mandate to the courts, which leaves the law 
unchanged, but seeks to compel the courts to construe and 
apply it, not according to the judicial, but according to the 
legislative judgment. 2 But in any case the substance of the 
legislative action should be regarded rather than the form ; and 
if it appears to be the intention to establish by declaratory stat- 
ute a rule of conduct for the future, the courts should accept 
and act upon it, without too nicely inquiring whether the mode 
by which the new rule is established is or is not the best, most 
decorous, and suitable that could have been adopted. 

If the legislature cannot thus indirectly control the action 
of the courts, by requiring of them a construction of the 
law according to its own views, it is very plain it cannot 
do so directly, by setting aside their judgments, compelling 
them to grant new trials, 3 ordering the discharge of offend- 

bins v. Cotn'rs Pueblo Co., 2 McCrary, tion of mere errors in taxation by legis- 

19(5. The words " former jeopardy " lation of a retrospective character. See 

had a settled meaning when the Constitu- post, p. 630. 

tion was adopted which by a declaratory 2 Governor v. Porter, 5 Humph. 165; 

statute the legislature cannot change. People v. Supervisors, &c., 16 N. Y. 424; 

Powell v. State, 17 Tex. App. 345. Reiser v. Tell Association, 39 Pa. St. 

1 Dash v. Van Kleek, 7 Johns. 477, 498, 137 ; O'Conner v. Warner, 4 W. &' S. 223 ; 

per Thompson, J. ; Ogden v. Blackledge, Lambertson v. Hogan, 2 Pa. St. 22. An 

2 Cranch, 272; Lambertson v. Hogan, 2 act directing that a certain deposition 

Pa. St. 2'2; Seibert v. Linton, 5 W. Va. which had previously been taken should 

67; Arnold v. Kelley, 6 W. Va. 446 ; Me- be read in evidence on the trial of a cer- 

Daniel v. Correll, 19 111. 226. The legis- tain cause, notwithstanding informalities, 

lature cannot dictate what instructions is void. Dupy v. Wickwire, 1 D. Chip. 

shall be given by the court to a jury, ex- 237, 6 Am. Dec. 729. 

cept by general law. State v. Hopper, 8 Lewis v. Webb, 3 Me. 326 ; Durham 

71 Mo. 425. A legislative act directing v. Lewiston, 4 Me. 140; Atkinson v. Dun- 

the levy and collection of a tax which has lap, 50 Me. Ill ; Bates v. Kimball, 2 Chip, 

already been declared illegal by the 77 ; Staniford v. Barry, 1 Aik. 314 ; Mer- 

judiciary, is void, as an attempted rever- rill v. Sherburne, 1 N. H. 199; Opinion of 

sal of judicial action. Mayor, &c. v. Horn, Judges in Matter of Dorr, 3 R. I. 299; 

26 Md. 191; Butler v. Supervisors of Taylor r. Place, 4 R. I. 324 ; De Chastel- 

Saginaw, 26 Mich. 22. See Forster v. lux v. Fairchild, 15 Pa. St. 18; Young 

Forster, 129 Mass. 559. This doctrine, v. State Bank, 4 Ind. 301 ; Beebe v. State, 

however, would not prevent the correc- 6 Ind. 601 ; Lanier v. Gallatas, 13 La. Ann. 



138 CONSTITUTIONAL LIMITATIONS. [CH. V. 

ers, 1 or directing what particular steps shall be taken in the 
progress of a judicial inquiry. 2 And as a court must act as an 



175; Mayor, &c. v. Horn, 26 Md. 194; 
Weaver v. Lapsley, 43 Ala. 224; San- 
ders D. Cabaniss, 43 Ala. 173 ; Moser v. 
White, 29 Mich. 69; Sydnor v. Palmer, 
32 Wis. 406; People v. Frisbie, 26 Cal. 
135; Lawson v. Jeffries, 47 Miss. 686, 
12 Am. Rep. 342; Ratcliffe v. Anderson, 
31 Gratt. 105, 31 Am. Rep. 716. And see 
post, pp. 557-561, and notes. It is not 
competent hy legislation to authorize the 
court of final resort to reopen and re- 
hear cases previously decided. Dorsey 
;. Dorsey, 37 Md. 64, 1 1 Am. Rep. 528. 
The legislature may control remedies, 
&c., but, when the matter has proceeded 
to judgment, it has passed beyond legis- 
lative control. Oliver v. McClure, 28 
Ark. 555; Griffin's Executory. Cunning- 
ham, 20 Gratt. 31; Teel v. Yancey, 23 
Gratt. 690; Hooker n. Hooker, 18 Miss. 
599. After an appeal bond was signed 
by the attorney, the court held bonds 
so signed bad. A statute validating all 
prior bonds so signed is void. Andrews 
v. Bcnne, 15 R. I. 451, 8 Atl. 540. 

1 In State v. Fleming, 7 Humph. 152, 
a legislative resolve that "no fine, forfeit- 
ure, or imprisonment should be imposed 
or recovered under the act of 1837 [then 
in force], and that all causes pending in 
any of the courts for such offence should 
be dismissed," was held void as an in- 
vasion of judicial authority. The legis- 
lature cannot declare a forfeiture of a right 
to act as curators of a college. State v. 
Adams, 44 Mo. 570. Nor can it authorize 
the governor or any other State officer 
to pass upon the validity of State grants 
and correct errors therein ; this being ju- 
dicial. Hilliard v. Connelly, 7 Ga. 172. 
Nor, where a corporate charter provides 
that it shall not be repealed "unless it shall 
be made to appear to the legislature that 
there has been a violation by the com- 
pany of some of its provisions," can there 
be a repeal before a judicial inquiry into 
the violation. Flint, &c. Plank Road Co. 
v. Woodhull, 25 Mich. 99. A legislative 
act cannot turn divorces nisi into absolute 
divorces, of its own force. Sparhawk v. 
Sparliawk, 116 Mass. 315. But to take 
away by statute a statutory right of ap- 
peal is not an exercise of judicial author- 
ity. Ex parte Me Cardie, 7 Wall. 506. 



And it has been held that a statute allow- 
ing an appeal in a particular case was 
valid. Prout v. Berry, 2 Gill, 147 ; State 
v. Northern Central R. R. Co., 18 Md. 193. 
A retroactive statute, giving the right of 
appeal in cases in which it had previously 
been lost by lapse of time, was sustained 
in Page v. Mathews's Adm'r, 40 Ala. 547. 
But in Carleton v. Goodwin's Ex'r, 41 Ala. 
153, an act the effect of which would have 
been to revive discontinued appeals, was 
held void as an exercise of judicial au- 
thority. See cases cited in next note. 

1 Opinions of Judges on the Dorr Case, 
3 R. I. 299; State v. Hopper, 71 Mo. 425. 
In the case of Picquet, Appellant, 5 Pick. 
64, the judge of probate had ordered let- 
ters of administration to issue to an appli- 
cant therefor, on his giving bond in the 
penal sum of $50,000, with sureties within 
the Commonwealth, for the faithful per- 
formance of his duties. He was unable 
to give the bond, and applied to the legis- 
lature for relief. Thereupon a resolve was 
passed "empowering" the judge of pro- 
bate to grant the letters of administration, 
provided the petitioner should give bond 
with his brother, a resident of Paris, 
France, as surety, and " that such bond 
should be in lieu of any and all bond or 
bonds by any law or statute in this Com- 
monwealth now in force required," &c. 
The judge of probate refused to grant the 
letters on the terms specified in this re- 
solve, and the Supreme Court, while hold- 
ing that it was not compulsory upon him, 
also declared their opinion that, if it were 
so, it would be inoperative and void. In 
Bradford v. Brooks, 2 Aik. 284, it was de- 
cided that the legislature had no power 
to revive a commission for proving claims 
against an estate after it had once expired. 
See also Bagg's Appeal, 43 Pa. St. 612; 
Trustees v. Bailey, 10 Fla. 238. In Hill 
v. Sunderland, 3 Vt. 507, and Burch v. 
Newberry, 10 N. Y. 374, it was held that 
the legislature had no power to grant to 
parties a right to appeal after it was gone 
under the general law. In Burt v. Wil- 
liams, 24 Ark. 91, it was held that the 
granting of continuances of pending cases 
was the exercise of judicial authority, and 
a legislative act assuming to do this was 
void. And where, by the general law, 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 139 

organized body of judges, and, where differences of opinion 
arise, they can only decide by majorities, it has been held that 
it would not be in the power of the legislature to provide that, 
in certain contingencies, the opinion of the minority of a court, 
vested with power by the Constitution, should prevail, so that 
the decision of the court in such cases should be rendered against 
the judgment of its members. 1 

Nor is it in the power of the legislature to bind individuals by 
a recital of facts in a statute, to be used as evidence against the 
parties interested. A recital of facts in the preamble of a 
statute may perhaps be evidence, where it relates to matters of 
a public nature, as that riots or disorders exist in a certain part 
of the country ; 2 but where the facts concern the rights of indi- 
viduals, the legislature cannot adjudicate upon them. As pri- 
vate statutes are generally obtained on the application of some 
party interested, and are put in form to suit his wishes, perhaps 
their exclusion from being made evidence against any other 
party would result from other general principles; but it is clear 
that the recital could have no force, except as a judicial finding 
of facts; and that such finding is no't within the legislative 
province. 3 

We come now to a class of cases in regard to which there has 
been serious contrariety of opinion; springing from the fact, 
perhaps, that the purpose sought to be accomplished by the 
statutes is generally effected by judicial proceedings, so that if 
the statutes are not a direct invasion of judicial authority, they 

the courts have no authority to grant a restriction of this character, the ruling of 
divorce for a given cause, the legislature this case is that the legislature cannot 
cannot confer the authority in a particu- impose it. The court was nearly equally 
lar case. Simmonds v. Siramonds, 103 divided, standing seven to six. But the 
Mass. 572, 4 Am. Rep. 576. And see post, decision of a majority of a court is bind- 
pp. 153, note, 559, and note. ing as though unanimous. Feige v. Mich. 
1 In Clapp i). Ely, 27 N. J. 622, it was Cent. R. R. Co., 62 Mich. 1, 28 N. W. 
held that a statute which provided that 685. A statute authorizing an unofficial 
no judgment of the Supreme Court should person to sit in the place of a judge who 
be reversed by the Court of Errors and is disqualified was held void in Van 
Appeals, unless a majority of those mem- Slyke v. Insurance Co., 39 Wis. 390, 20 
bers of the court who were competent to Am. Rep. 60. That judicial power can- 
sit on the hearing and decision should not be delegated, see Cohen v. HofiE, 3 
concur in the reversal, was unconstitu- Brev. 500. Therefore a commission of 
tional. Its effect would be, if the court appeals created by statute cannot decide 
were not full, to make the opinion of the causes in place of the constitutional 
minority in favor of affirmance control Supreme Court. State v. Noble, 118 Ind. 
that of the majority in favor of reversal, 350, 21 N. E. 244. 
unless the latter were a majority of the 2 Rex v. Sutton, 4 M. & S. 632. 
whole court. Such a provision in the s Elmendorf v. Carmichael, 3 Litt. 
constitution might be proper and unex- 475, 14 Am. Dec. 86 ; Parmelee v. 
ceptionable ; but if the constitution has Thompson, 7 Hill, 77; Lothrop v. Stead- 
created a court of appeals, without any man, 42 Conn. 583, 592. 



140 CONSTITUTIONAL LIMITATIONS. [CH. V. 

at least cover ground which the courts usually occupy under 
general laws conferring the jurisdiction upon them. We refer to 



Statutes empowering Guardians and other Trustees to 
sell Lands. 

Whenever it becomes necessary or proper to sell the estate of 
a decedent for the payment of debts, or of a lunatic or other 
incompetent person for the same purpose, or for future support, 
or of a minor to provide the means for his education and nur- 
ture, or for the most profitable investment of the proceeds, or of 
tenants in common to effectuate a partition between them, it 
will probably be found in every State that some court is vested 
with jurisdiction to make the necessary order, if the facts after 
a hearing of the parties in interest seem to render it important. 
The case is eminently one for judicial investigation. There are 
facts to be inquired into, in regard to which it is always possible 
that disputes may arise; the party in interest is often incom- 
petent to act on his own behalf, and his interest is carefully to 
be inquired into and guarded; and as the proceeding will usually 
be ex parte^ there is more than the ordinary opportunity for 
fraud upon the party interested, as well as upon the authority 
which grants permission. It is highly and peculiarly proper, 
therefore, that by general laws judicial inquiry should be pro- 
vided for these cases, and that such laws should require notice 
to all proper parties, and afford an opportunity for the presenta- 
tion of any facts which might bear upon the propriety of granting 
the applications. 

But it will sometimes be found that the general laws provided 
for these cases are not applicable to some which arise; or, if 
applicable, that they do not accomplish fully all that in some 
cases seems desirable; and in these cases, and perhaps also in 
some others without similar excuse, it has not been unusual for 
legislative authority to intervene, and by special statute to grant 
the permission which, under the general law, would be granted 
by the courts. The power to pass such statutes has often been 
disputed, and it may be well to see upon what basis of authority, 
as well as of reason, it rests. 

If in fact the inquiry which precedes the grant of authority is 
in its nature judicial, it would seem clear that such statutes 
must be ineffectual and void. But if judicial inquiry is not 
essential, and the legislature may confer the power of sale in 
such a case upon an ex parte presentation of evidence, or upon 
the representations of the parties without any proof whatever, 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 141 

then we must consider the general laws to be passed, not because 
the cases fall necessarily within the province of judicial action, 
but because the courts can more conveniently consider, and more 
properly, safely, and inexpensively pass upon such cases, than 
the legislative body to which the power primarily belongs. 1 

The rule upon this subject which appears to be deducible from 
the authorities, is this: If the party standing in position of 
trustee applies for permission to convert by a sale the real prop- 
erty into personal, in order to effectuate the purposes of the 
trust, and to accomplish objects in the interest of the cestui que 
trust not otherwise attainable, there is nothing in the granting 
of permission which is in its nature judicial. To grant permis- 
sion is merely to enlarge the sphere of the fiduciary authority, 
the better to accomplish the purpose for which the trusteeship 
exists; and while it would be entirely proper to make the ques- 
tions which might arise assume a judicial form, by referring 
them to some proper court for consideration and decision, there 
is no usurpation of power if the legislature shall, by direct 
action, grant the permission. 

In the case of Rice v. Parkman, 2 certain minors having become 
entitled to real estate by descent from their mother, the legisla- 
ture passed a special statute empowering their father as guardian 
for them, and, after giving bond to the judge of probate, to sell 
and convey the lands, and put the proceeds at interest on good 
security for the benefit of the minor owners. A sale was made 
accordingly; but the children, after coming of age, brought suit 
against the party claiming under the sale, insisting that the 
special statute was void. There was in force at the time this 
special statute was passed, a general statute, under which license 
might have been granted by the courts; but it was held that this 
general law did not deprive the legislature of that full and com- 
plete control over such cases which it would have possessed had 
no such statute existed. "If," say the court, "the power by 
which the resolve authorizing the sale in this case was passed 
were of a judicial nature, it would be very clear that it could 

1 There are constitutional provisions plicable, might also be held to exclude 
in Kentucky, Virginia, Missouri, Oregon, such special authorization. 
Nevada, Indiana, Marj-land, New Jersey, 2 16 Mass. 326. See the criticism of 
Arkansas, Florida, Illinois, Wisconsin, this case in Jones v. Perry, 10 Yerg. 69, 
Texas, West Virginia, Michigan, and Col- 30 Am. Dec. 430. That case is out of 
orado, forbidding special laws licensing harmony with the current of authority 
the sale of the lands of minors and other on the subject here considered. In Call- 
persons under legal disability. Perhaps fornia it has been held that where a minor 
the general provision in some other con- has a guardian, it is not competent for the 
stitutions, forbidding special laws in cases legislature to empower another to se'l Ins 
where a general law could be made ap- lands. Lincoln v. Alexander, 62 Cal. 482, 

28 Am. Rep. 639. 



142 CONSTITUTIONAL LIMITATIONS. [CH. V. 

not have been exercised by the legislature without violating an 
express provision of the constitution. But.it does not seem to 
us to be of this description of power; for it was not a case of 
controversy between party and party, nor is there any decree or 
judgment affecting the title to property. The only object of the 
authority granted by the legislature was to transmute real into 
personal estate, for purposes beneficial to all who were interested 
therein. This is a power frequently exercised by the legislature 
of this State, since the adoption of the constitution, and by the 
legislatures of the province and of the colony, while under the 
sovereignty of Great Britain, analogous to the power exercised 
by the British Parliament on similar subjects time out of mind. 
Indeed it seems absolutely necessary for the interest of those 
who, by the general rules of law, are incapacitated from dispos- 
ing of their property, that a power should exist somewhere of 
converting lands into money. For otherwise many minors 
might suffer, although having property ; it not being in a con- 
dition to yield an income. This power must rest in the legisla- 
ture in this Commonwealth; that body being alone competent to 
act as the general guardian and protector of those who are dis- 
abled to act for themselves. 

" It was undoubtedly wise to delegate this authority to other 
bodies, whose sessions are regular and constant, and whose 
structure may enable them more easily to understand the merits 
of the particular application brought before them. But it does 
not follow that, because the power has been delegated by the 
legislature to courts of law, it is judicial in its character. For 
aught we see, the same authority might have been given to the 
selectmen of each town, or to the clerks or registers of the 
counties, it being a mere ministerial act, certainly requiring 
discretion, and sometimes knowledge of law, for its due exercise, 
but still partaking in no degree of the characteristics of judicial 
power. It is doubtless included in the general authority granted 
by the people to the legislature by the constitution. For full 
power and authority is given from time to time to make, ordain, 
and establish all manner of wholesome and reasonable orders, 
laws, statutes, and ordinances, directions, and instructions (so 
as the same be not repugnant or contrary to the constitution), as 
they shall judge to be for the good and welfare of the Common- 
wealth, and of the subjects thereof. No one imagines that, 
under this general authority, the legislature could deprive a 
citizen of his estate, or impair any valuable contract in which 
he might be interested. But there seems to be no reason to 
doubt that, upon his application, or the application of those 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 143 

\vho properly represent him, if disabled from acting himself, 
a beneficial change of his estate, or a sale of it for purposes 
necessary and convenient for the lawful owner, is a just and 
proper subject for the exercise of that authority. It is, in fact, 
protecting him in his property, which the legislature is bound 
to do, and enabling him to derive subsistence, comfort, and 
education from property which might otherwise be wholly use- 
less during that period of life when it might be most beneficially 
employed. 

"If this be not true, then the general laws under which so 
many estates of minors, persons non compos mentis, and others, 
have been sold and converted into money, are unauthorized by 
the constitution, and void. For the courts derive their authority 
from the legislature, and, it not being of a judicial nature, if 
the legislature had it not, they could not communicate it to any 
other body. Thus, if there were no power to relieve those from 
actual distress who had unproductive property, and were disabled 
from conveying it themselves, it would seem that one of the 
most essential objects of government that of providing for 
the welfare of the citizens would be lost. But the argument 
which has most weight on the part of the defendants is, that the 
legislature has exercised its power over this subject in the only 
constitutional way, by establishing a general provision; and 
that, having done this, their authority has ceased, they having 
no right to interfere in particular cases. And if the question 
were one of expediency only, we should perhaps be convinced by 
the argument, that it would be better for all such applications 
to be made to the courts empowered to sustain them. But as a 
question of right, we think the argument fails. The constituent, 
when he has delegated an authority without an interest, may do 
the act himself which he has authorized another to do ; and 
especially when that constituent is the legislature, and is not 
prohibited by the constitution from exercising the authority. 
Indeed, the whole authority might be revoked, and the legisla- 
ture resume the burden of the business to itself, if in its wisdom 
it should determine that the common welfare required it. It is 
not legislation which must be by general acts and rules, but the 
use of a parental or tutorial power, for purposes of kindness, 
without interfering with or prejudice to the rights of any but 
those who apply for specific relief. The title of strangers is not 
in any degree affected by such an interposition." 1 

1 In Shumway v. Bennett, 29 Mich, it is held that the question of incorporat- 
451, the distinction between judicial and ing territory as a village cannot be made 
administrative power is pointed out, and a judicial question. A like decision is 



144 



CONSTITUTIONAL LIMITATIONS. 



[CII. V. 



A similar statute was sustained by the Court for tlie Correction 
of Errors in New York. "It is clearly," says the Chancellor, 
"within the powers of the legislature, as parens patrics, to pre- 
scribe such rules and regulations as it may deem proper for the 
superintendence, disposition, and management of the property 
and effects of infants, lunatics, and other persons who are 
incapable of managing their own affairs. But even that power 
cannot constitutionally be so far extended as to transfer the 
beneficial use of the property to another person, except in those 
cases where it can legally be presumed the owner of the prop- 
erty would himself have given the use of his property to the 
other, if he had been in a situation to act for himself, as in the 
case of a provision out of the estate of an infant or lunatic for 
the support of an indigent parent or other near relative. 1 

made in State v. Simons, 32 Minn. 640, 
21 N. W. 750, and by Chancellor Cooper, 
in Ex parte Burns, 1 Tenn. Ch. R. 83, 
though it is said in that case that the 
organization of corporations which are 
created by legislative authority may be 
referred to the courts. See, on the same 
subject, State v. Armstrong, 3 Sneed, 
634; Galesburg v. Hawkinson, 75 111. 
152. Compare Burlington v. Leebrick, 
43 Iowa, 252, and Wahoo v. Dickinson, 
23 Neb. 426, 36 N. W. 813, where it 
is held the question of extending, after 
hearing, the limits of a municipality may 
be decided by a court. That the courts 
cannot be clothed with legislative author- 
ity, see State v. Young, 29 Minn. 474, 
9 N. W. 737. Compare Ex parte Mato, 
19 Tex. App. 112. For the distinction 
between political and judicial power, see 
further, Dickey v. Reed, 78 111. 261; 
Commonwealth v. Jones, 10 Bush, 725. 
And see post, pp. 149, 150, and notes. In 
Hegarty's Appeal, 75 Pa. St. 603, the 
power of a legislature to authorize a trus- 
tee to sell the lands of parties who were 
sui juris, and might act on their own be- 
half, was denied, and the case was dis- 
tinguished from Norris v. Clymer, 2 Pa. 
St. 277, and others which had followed it. 
The foreclosure of a mortgage on private 
property cannot be accomplished by legis- 
lative enactment. Ashuelot R. R. Co. v. 
Elliott, 58 N. H. 451. 

Power to try city officers by impeach- 
ment may rest in a city council, the judg- 
ment extending only to removal arid dis- 
qualification to hold any corporate office. 
S'ate r. Judges, 35 La. Ann. 1075. 



1 Cochran v. Van Surlay, 20 Wend. 365, 
373. See the same case in the Supreme 
Court, sub nom. Clarke r. Van Surlay, 15 
Wend. 436. See also Suydam v. William- 
son, 24 How. 427 ; Williamson v. Suydam, 
6 Wall. 723 ; Heirs of Holman v. Bank of 
Norfolk, 12 Ala. 369 ; Florentine v. Bar- 
ton, 2 Wall. 210. In Hoyt v. Sprague, 103 
U. S. 613, it was held competent, by 
special statute, to provide for the invest- 
ment of the estate of minors in a manu- 
facturing corporation, and that, after the 
investment was accordingly made, no ac- 
count could be demanded on their behalf, 
except of the stock and its dividends. But 
the legislature cannot empower the guar- 
dian of infants to mortgage their lands to 
pay demands which are not obligations 
against them or their estate. Burke v. 
Mechanics' Savings Bank, 12 R. I. 513. 
In Brevoort r. Grace, 53 N. Y. 245, the 
power of the legislature to authorize the 
sale of lands of infants by special statute 
was held to extend to the future contin- 
gent interests of those not in being, but 
not to the interests of non-consenting 
adults, competent to act on their own be- 
half. In Opinions of the Judges, 4 N. H. 
665, 672, the validity of such a special 
statute, under the constitution of New 
Hampshire, was denied. The judges say : 
" The objection to the exercise of such a 
power by the legislature is, that it is in its 
nature both legislative and judicial. It 
is the province of the legislature to pre- 
scribe the rule of law, but to apply it to 
particular cases is the business of the 
courts of law. And the thirty-eighth ar- 
ticle in the Bill of Rights declares that 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 145 



The same ruling has often been made in analogous cases. In 
Ohio, a special act of the legislature authorizing commissioners 
to make sale of lands held in fee tail, by devisees under a will, 
in order to cut off the entailment and effect a partition between 
them, the statute being applied for by the mother of the 
devisees and the executor of the will, and on behalf of the 
devisees, was held not obnoxious to constitutional objection, 
and to be sustainable on immemorial legislative usage, and on 
the same ground which would support general laws for the same 
purpose. 1 In a case in the Supreme Court of the United States, 



' in the government of this State the three 
essential powers thereof, to wit, the legis- 
lative, executive, and judicial, ought to 
be kept as separate from, and independ- 
ent of, each other as the nature of a free 
government will admit, or as is consistent 
with that chain of connection that binds 
the whole fabric of the constitution in one 
indissoluble bond of union and amity.' 
The exercise of such a power by the legis- 
lature can never be necessary. By the 
existing laws, judges of probate have very 
extensivejurisdiction to license the sale of 
the real estate of minors by their guar- 
dians. If the jurisdiction of the judges of 
probate be not sufficiently extensive to 
reach all proper cases, it may be a good 
reason why that jurisdiction should be 
extended, but can hardly be deemed a 
sufficient reason for the particular inter- 
position of the legislature in an individual 
case. If there be a defect in the laws, 
they should be amended. Under our in- 
stitutions all men are viewed as equal, en- 
titled to enjoy equal privileges, and to be 
governed by equal laws. If it be fit and 
proper that license should be given to one 
guardian, under particular circumstances, 
to sell the estate of his ward, it is fit and 
proper that all other guardians should, 
under similar circumstances, have the 
same license. This is the very genius 
and spirit of our institutions. And we 
are of opinion that an act of the legisla- 
ture to authorize the sale of the land of a 
particular minor by his guardian cannot 
be easily reconciled with the spirit of the 
article in the Bill of Rights which we have 
just cited. It is true that the grant of 
such a license by the legislature to the 
guardian is intended as a privilege and a 
benefit to the ward. But by the law of 
the land no minor is capable of assenting 
to a sale of his real estate in such a man- 



ner as to bind himself. And no guardian 
is permitted by the same law to deter- 
mine when the estate of his ward ought 
and when it ought not to be sold. In the 
contemplation of the law, the one has 
not sufficient discretion to judge of the 
propriety and expediency of a sale of his 
estate, and the other is not to be intrusted 
with the power of judging. Such being 
the general law of the land, it is presumed 
that the legislature would be unwilling to 
rest the justification of an act authorizing 
the sale of a minor's estate upon any assent 
which the guardian or the minor could 
give in the proceeding. The question then 
is, as it seems to us : Can a ward be de- 
prived of his inheritance without his con- 
sent by an act of the legislature which is 
intended to apply to no other individual? 
The fifteenth article in the Bill of Rights 
declares that no subject shall be deprived 
of his property but by the judgment of hia 
peers or the law of the land. Can an act 
of the legislature, intended to authorize 
one man to sell the land of another with- 
out his consent be 'the law of the land * 
within the meaning of the constitution ? 
Can it be the law of the land in a free 
country ? If the question proposed to us 
can be resolved into these questions, as it 
appears to us it may, we feel entirely 
confident that the representatives of the 
people of this State will agree with us in 
the opinion we feel ourselves bound to ex- 
press on the question submitted to us, that 
the legislature cannot authorize a guar- 
dian of minors, by a special act or resolve, 
to make a valid conveyance of the real 
estate of his wards." See also Jones r. 
Perry, 10 Yerg. 59, 30 Am. Dec. 430; 
Lincoln v. Alexander, 52 Cal. 482, 28 Am. 
Rep. 69. 

1 Carroll v. Lessee of Olmsted, 16 
Ohio, 251. 



10 



146 CONSTITUTIONAL LIMITATIONS. [CH. V. 

where an executrix who had proved a will in New Hampshire 
made sale of lands without authority in Rhode Island, for the 
purpose of satisfying debts against the estate, a subsequent act 
of the Rhode Island legislature, confirming the sale, was held 
not an encroachment upon the judicial power. The land, it was 
said, descended to the heirs subject to a lien for the payment of 
debts, and there is nothing in the nature of the act of authoriz- 
ing a sale to satisfy the lieu, which requires that it should be 
performed by a judicial tribunal, or that it should be performed 
by a delegate rather than by the legislature itself. It is reme- 
dial in its nature, to give effect to existing rights. 1 The case 
showed the actual existence of debts, and indeed a judicial 
license for the sale of lands to satisfy them had been granted 
in New Hampshire before the sale was made. The decision 
was afterwards followed in a carefully considered case in the 
same court. 2 In each of these cases it is assumed that the 
legislature does not by the special statute determine the exist- 
ence or amount of the debts, and disputes concerning them would 
be determinable in the usual modes. Many other decisions have 
been made to the same effect. 3 

This species of legislation may perhaps be properly called 
prerogative remedial legislation. It hears and determines no 
rights ; it deprives no one of his property. It simply authorizes 
one's real estate to be turned into personal, on the application 

1 Wilkinson v. Leland, 2 Pet. 627, 660. 565 ; Sohier v. Massachusetts, &c. Hospi- 
Compare Brevoort v. Grace, 53 N. Y. 245. tal, 3 Gush. 483 ; Lobrano v. Nelligan, 9 

2 Watkins v. Holman's Lessee, 16 Pet. Wall. 295. Contra, Brenham v. Story, 39 
25, 60. See also Florentine v. Barton, 2 Cal. 179. In Moore v. Maxwell, 18 Ark. 
Wall. 210; Doe v. Douglass, 8 Blackf. 10. 469, a special statute authorizing the ad- 

8 Thurston v. Thurston, 6 R. I. 296, ministrator of one who held the mere 

302 ; Williamson v. Williamson, 11 Miss, naked legal title to convey to the owner 

715; McComb v. Gilkey, 29 Miss. 146; of the equitable title was held valid. To 

Boon v. Bowers, 30 Miss. 246; Stewart the same effect is Reformed P. D. Church 

v. Griffith, 33 Mo. 13 ; Estep v. Hutchman, v. Mott, 7 Paige. 77, 32 Am. Dec. 613. 

14 S. & R. 435; Snowhill v. Sriowliill, 17 A special act allowing the widow to sell 

N. J. Eq. 30 ; Dorsey v. Gilbert, 11 G. & J. lands of the deceased husband, subject 

87 ; Norris v. Clymer, 2 Pa. St. 277 ; to the approval of the probate judge, is 

Sergeant v. Kuhn, 2 Pa. St. 393; Kerr v. valid. Bruce v. Bradshaw, 69 Ala. 360. 

Kitchen, 17 Pa. St. 433; Coleman v. In Stanley v. Colt, 5 Wall. 119, an act 

Carr, 1 Miss. 258; Davison v. Johonnot, 7 permitting the sale of real estate which 

Met. 388 ; Towle v. Forney, 14 N. Y. 423 ; had been devised to charitable uses was 

Leggett v. Hunter, 19 N. Y. 445; Bre- sustained, no diversion of the gift being 

voort v. Grace, 53 N. Y. 245; Gannett v. made. A more doubtful case is that of 

Leonard, 47 Mo. 205; Kibby v. Chet- Linsley v. Hubbard,44 Conn. 109, 26 Am. 

wood's Adm'rs, 4 T. B. Monr. 91; She- Rep. 431, in which it was held competent, 

ban's Heirs v. Barnett's Heirs, 6 T. B. on petition of tenant for life, to order a 

Monr. 594 ; Davis v. State Bank, tf Ind. sale of lands for the benefit of all con- 

316; Richardson v. Monson, 23 Conn. 94; cerned, though against remonstrance of 

Ward v. New England, &c. Co., 1 Cliff, owners of the reversion. 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 147 

of the person representing his interest, and under such circum- 
stances that the consent of the owner, if capable of giving it, 
would be presumed. It is in the nature of the grant of a privi- 
lege to one person, which at the same time affects injuriously 
the rights of no other. 1 

But a different case is presented when the legislature assumes 
to authorize a person who does not occupy a fiduciary relation 
to the owner, to make sale of real estate, to satisfy demands 
which he asserts, but which are not judicially determined, or 
for any other purpose not connected with the convenience or 
necessity of the owner himself. An act of the legislature of 
Illinois undertook to empower a party who had applied for it 
to make sale of the lands pertaining to the estate of a deceased 
person, in order to raise a certain specified sum of money which 
the legislature assumed to be due to him and another person, 
for moneys by them advanced and liabilities incurred on behalf 
of the estate, and to apply the same to the extinguishment of 
their claims. Now it is evident that this act was in the nature 
of a judicial decree, passed on the application of parties adverse 
in interest to the estate, and in effect adjudging a certain amount 
to be due them, and ordering lands to be sold for its satisfaction. 
As was well said by the Supreme Court of Illinois, in adjudging 
the act void: "If this is not the exercise of a power of inquiry 
into, and a determination of, facts between debtor and creditor, 
and that, too, ex parte and summary in its character, we are at 
a loss to understand the meaning of terms ; nay, that it is ad- 
judging and directing the application of one person's property 
to another, on a claim of indebtedness, without notice to, or 
hearing of, the parties whose estate is divested by the act. 
That the exercise of such power is in its nature clearly judi- 
cial, we think too apparent to need argument to illustrate its 
truth. It is so self-evident from the facts disclosed that it 
proves itself." 2 

1 It would be equally competent for McLean, 486, Judge Pope assumes that 
the legislature to authorize a person under the case of Lane v. Dorman decides that 
legal disability e.g. an infant to con- a special act, authorizing an executor to 
vey his estate, as to authorize it to be sell lands of the testator to pay debts 
conveyed by guardian. McComb v. Gil- against his estate, would be unconstitu- 
key, 29 Miss. 146. QSee in this connec- tional. We do not so understand that 
tion, Louisville, N. O. & T. K. Co. v. decision. On the contrary, another case 
Ely the, 69 Miss. 939, 11 So. Ill, 16 in the same volume, Edwards v. Pope, 
L. R. A. 251, and note on constitution- p. 465, fully sustains the cases before de- 
ality of private statutes to authorize dis- cided, distinguishing them from Lane v. 
posal of property.] Dorman. But that indeed is also done in 

2 Lane v. Dorman, 4 111. 238, 242, 36 the principal case, where the court, after 
Am. Dec. 543. In Dubois v. McLean, 4 referring to similar cases in Kentucky, 



148 . 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



A case in harmony with the one last referred to was decided 
by the Supreme Court of Michigan. Under the act of Congress 
"for the relief of citizens of towns upon the lands of the United 
States, under certain circumstances," approved May 23, 1844, 
and which provided that the trust under said act should be con- 
ducted " under such rules and regulations as may be prescribed 
by the legislative authority of the State," &c., the legislature 
passed an act authorizing the trustee to give deeds to a person 
named therein, and those claiming under him; thus undertak- 
ing to dispose of the whole trust to the person thus named and 
his grantees, and authorizing no one else to be considered or to 
receive any relief. This was very plainly an attempted adjudi- 
cation upon the rights of the parties concerned; it did not 
establish regulations for the administration of the trust, but it 
adjudged the trust property to certain claimants exclusively, in 
disregard of any rights which might exist in others; and it was 
therefore declared to be void. 1 And it has also been held that, 



say : " These cases are clearly distin- 
guished from the case at bar. The acts 
were for the benefit of all the creditors 
of the estates, without distinction ; and 
in one case, in addition, for the purpose 
of perfecting titles contracted to be made 
by the intestate. The claims of the cred- 
itors of the intestate were to be estab- 
lished by judicial or other satisfactory 
legal proceedings, and, in truth, in the 
last case cited, the commissioners were 
nothing more than special administrators. 
The legislative department, in passing 
these acts, investigated nothing, nor did 
an act which could be deemed a judicial 
inquiry. It neither examined proof, nor 
determined the nature or extent of claims; 
it merely authorized the application of 
the real estate to the payment of debts 
generally, discriminating in favor of no 
one creditor, and giving no one a prefer- 
ence over another. Not so in the case 
before us ; the amount is investigated 
juid ascertained, and the sale is directed 
for the benefit of two persons exclusively. 
The proceeds are to be applied to the 
payment of such claims and none other, 
for liabilities said to be incurred, but not 
liquidated or satisfied; and those, too, 
created after the death of the intestate." 
See also Mason r. Wait, 5 III. 127, 184; 
Davenport v. Young, 16 111. 548 ; Rozier 
v. Fagan, 46 111. 404. The case of Estep 
v. Hutchman, 14 S. & R. 435, would seem 
to be more open to question on this point 



than any of the others before cited. It 
was the case of a special statute, author- 
izing the guardian of infant heirs to con- 
vey their lands in satisfaction of a con- 
tract made by their ancestor ; and the 
statute was sustained. Compare this 
with Jones v. Perry, 10 Yerg. 59, where 
an act authorizing a guardian to sell 
lands to pay the ancestor's debts was 
held void. 

1 Cash, Appellant, 6 Mich. 193. The 
case of Powers v. Bergen, 6 N. Y. 358, is 
perhaps to be referred to another princi- 
ple than that of encroachment upon judi- 
cial authority. That was a case where 
the legislature, by special act, had under- 
taken to authorize the sale of property, 
not for the purpose of satisfying liens 
upon it, or of meeting or in any way pro- 
viding for the necessities or wants of the 
owners, but solely, after paying expenses, 
for the investment of the proceeds. It 
appears from that case that the executors 
under the will of the former owner held 
the lands in trust for a daughter of the 
testator during her natural life, with a 
vested remainder in fee in her two chil- 
dren. The special act assumed to em- 
power them to sell and convey the 
complete fee, and apply the proceeds, 
first, to the payment of their commis- 
sions, costs, and expenses; serond, to the 
discharge of assessments, liens, charges, 
and incumbrances on the land, of which, 
however, none were shown to exist ; and 



CH. V.J POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 149 

whether a corporation has been guilty of abuse of authority 
under its charter, so as justly to subject it to forfeiture, 1 and 
whether a widow is entitled to dower in a specified parcel of 
land, 54 are judicial questions which cannot be decided by the 
legislature. In these cases there are necessarily adverse par- 
ties ; the questions that would arise are essentially judicial, and 
over them the courts possess jurisdiction at the common law ; 
and it is presumable that legislative acts of this character must 
have been adopted carelessly, and without a due consideration 
of the proper boundaries which mark the separation of legislative 



third, to invest the proceeds and pay over 
the income, after deducting taxes and 
charges, to the daughter during her life, 
and after her decease to convey, assign, 
or pay over the same to the persons who 
would be entitled under the will. The 
court regarded this as an unauthorized 
interference with private property upon 
no necessity, and altogether void, as de- 
priving the owners of their property con- 
trary to the '' law of the land." At the 
same time the authority of those cases, 
where it has been held that the legisla- 
ture, acting as the guardian and protector 
of those who are disabled to act for 
themselves by reason of infancy, lunacy, 
or other like cause, may constitutionally 
pass either general or private laws, under 
which an effectual disposition of their 
property might be made, was not ques- 
tioned. Tlie court cite, with apparent 
approval, the cases, among others, of 
Rice >. Parkman, 16 Mass. 326 ; Cochran 
v. Van Surlay, 20 Wend. 365; and Wil- 
kinson v. Leland, 2 Pet. 627. The case of 
Ervine's Appeal, 16 Pa. St. 256, was 
similar, in the principles involved, to 
Powers v. Bergen, and was decided in the 
same way. See also Kneass's Appeal, 31 
Pa. St. 87 ; Maxwell v. Goetschius, 40 N. 
J. 383, 29 Am. Rep. 242, and compare 
with Ker v. Kitchen, 17 Pa. St. 433; 
Martin's Appeal, 23 Pa. St. 433; Heg- 
arty's Appeal, 75 Pa. St. 503; Tharp v. 
Fleming, 1 Houston, 580. There is no 
constitutional objection to a statute which 
transfers the mere legal title of a trustee 
to the beneficiary. Reformed P. I). 
Church v. Mott, 7 Paige, 77, 32 Am. 
Dec. 613. 

1 State v. Noyes, 47 Me. 189 ; Camp- 
bell v. Union Bank, 6 How. (Miss.) 661; 
Canal Co. v. Railroad Co., 4 G. & J. 1, 22 ; 



Regents of University v. Williams, 9 G. 
& J. 365. In Miners' Bank of Dubuque 
v. United States, 1 Morris, 482, a clause 
in a charter authorizing the legislature to 
repeal it for any abuse or misuser of cor- 
porate privileges was held to refer the 
question of abuse to the legislative judg- 
ment. In Erie & North East R. R. Co. 
v. Casey, 26 Pa. St. 287, on the other 
hand, it was held that the legislature 
could not conclude the corporation by its 
repealing act, but that the question of 
abuse of corporate authority would be 
one of fact to be passed upon, if denied, 
by a jury, so that the act would be valid 
or void as the jury should find. Com- 
pare Flint & Fentonville P. R. Co. v. 
Woodhull, 25 Mich. 99; 12 Am. Rep. 
233, in which it was held that the reser- 
vation of a power to repeal a charter for 
violation of its provisions necessarily 
presented a judicial question, and the re- 
peal must be preceded by a proper judi- 
cial finding. In Carey v. Giles, 9 Ga. 253, 
the appointment by the legislature of a 
receiver for an insolvent bank was sus- 
tained ; and in Hindman v. Piper, 50 Mo. 
292, a legislative appointment of a trustee 
was also sustained in a peculiar case. In 
Lothrop v. Steadman, 42 Conn. 583, the 
power of the legislature as an adminis- 
trative measure to appoint a trustee to 
take charge of and manage the affairs of 
a corporation whose charter had been 
repealed, was affirmed. For a similar 
principle see Albertson v. Landon, 42 
Conn. 209. And see post, p. 520. QAnd 
Congress has power to declare the forfeit- 
ure of a land grant for breach of condi- 
tion subsequent. All. & Pac. R. Co. v. 
Mingus, 165 U. S. 413, 17 Sup. Ct. Rep. 
348J 

2 Edwards v. Pope, 4 111. 466. 



150 CONSTITUTIONAL LTMITATTOXS. [CH. V. 

from judicial duties. 1 As well might the legislature proceed to 
declare that one man is indebted to another in a sum specified, 
and establish by enactment a conclusive demand against him. 2 

We have elsewhere referred to a number of cases where 
statutes have been held unobjectionable which validated legal 
proceedings, notwithstanding irregularities apparent in them. 3 
These statutes may as properly be made applicable to judicial as 
to ministerial proceedings; and although, when they refer to 
such proceedings, they may at first seem like an interference 
with judicial authority, yet if they are only in aid of judicial 
proceedings, and tend to their support by precluding parties 
from taking advantage of errors which do not affect their sub- 
stantial rights, they cannot be obnoxious to the charge of usurp- 
ing judicial power. The legislature does, or may, prescribe the 
rules under which the judicial power is exercised by the courts; 
and in doing so it may dispense with any of those formalities 
which are not essential to the jurisdiction of the court; and 
whatever it may dispense with by statute anterior to the pro- 
ceedings, we believe it may also dispense with by statute after 
the proceedings have been taken, if the court has failed to ob- 
serve any of those formalities. But it would not be competent 
for the legislature to authorize a court to proceed and adjudicate 
upon the rights of parties, without giving them an opportunity 

1 The unjust and dangerous character to stand against the antagonism of the 

of legislation of this description is well legislature and the bar,' one independent 

stated by the Supreme Court of Pennsyl- co-ordinate branch of the government 

vania : " When, in the exercise of proper will become the subservient handmaid of 

legislative powers, general laws are en- another, and a quiet, insidious revolution 

acted which bear, or may bear, on the be effected in the administration of the 

whole community, if they are unjust and government, whilst its form on paper 

against the spirit of the Constitution, the remains the same." Ervine's Appeal, 16 

whole community will be interested to Pa. St. 256, 268. 

procure their repeal by a voice potential. 2 A statute is void which undertakes 

And that is the great security for just to make railroad companies liable for the 

and fair legislation. But when individ- expense of coroners' inquests, and of the 

uals are selected from the mass, and laws burial of persons dying on the cars, or 

are enacted affecting their property, killed by collision or other accident oc- 

witliout summons or notice, at the insti- curring to the cars, irrespective of any 

gation of an interested party, who is to question of negligence. Ohio & M. R. R. 

stand up for them, thus isolated from the Co. v. Lackey, 78 111. 55, 20 Am. Rep. 

mass, in injury and injustice, or where 259. [jBut a railroad may be made abso- 

are they to seek relief from such acts of lutely liable for loss from fires caused by 

despotic power? They have no refuge sparks from its locomotives, regardless 

but in the courts, the only secure place of the question of negligence. Matthews 

for determining conflicting rights by due v. St. Lmiis & S. F. R. Co., 121 Mo. 298, 

course of law. But if the judiciary give 24 S. W. 591, 25 L. R. A. 161, and note, 

way, and in the language of the Chief See this case affirmed in 105 U. S. 1, 17 

Justice in Greenough v. Greenough, in Sup. Ct. Rep. 243. J 
11 Pa. St. 489, 'confesses itself too weak 8 See post, pp. 630-646. 



CIT. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 151 

to be heard before it; and, for the same reason, it would be 
incompetent for it, by retrospective legislation, to make valid 
any proceedings which had been had in the courts, but which 
were void for want of jurisdiction over the parties. Such a 
legislative enactment would be doubly objectionable: first, as an 
exercise of judicial power, since, the proceedings in court being 
void, it would be the statute alone which would constitute an 
adjudication upon the rights of the parties; and second, because, 
in all judicial proceedings, notice to parties and an opportunity 
to defend are essential, both of which they would be deprived 
of in such a case. 1 And for like reasons a statute validating 
proceedings had before an intruder into a judicial office, before 
whom no one is authorized or required to appear, and who could 
have jurisdiction neither of the parties nor of the subject-matter, 
would also be void. 2 



1 In McDaniel v. Correll, 19 111. 226, it 
appeared that a statute had been passed 
to make valid certain legal proceedings 
by which an alleged will was adjudged 
void, and which were had against non- 
resident defendants, over whom the courts 
had obtained no jurisdiction. The court 
say : " If it was competent for the legis- 
lature to make a void proceeding valid, 
then it has been done in this case. Upon 
this question we cannot for a moment 
doubt or hesitate. They can no more 
impart a binding efficacy to a void pro- 
ceeding, than they can take one man's 
property from him and give it to another. 
Indeed, to do the one is to accomplish the 
other. By the decree in this case the will 
in question was declared void, and, con- 
sequently, if effect be given to the decree, 
the legacies given to those absent defend- 
ants by the will are taken from them and 
given to others, according to our statute 
of descents. Until the passage of the act 
in question, they were not bound by the 
verdict of the jury in this case, and it 
could not form the basis of a valid de- 
cree. Had the decree been rendered 
before the passage of the act, it would 
have been as competent to make that 
valid as it wns to validate the antecedent 
proceedings vpon which alone the decree 
could rest. The want of jurisdiction over 
the defendants was as fatal to the one aa 
it could be to the other. If we assume 
the act to be valid, then the legacies 
which before belonged to the legatees 
have now ceased to be theirs, and this 



result has been brought about by the leg- 
islative act alone. The effect of the act 
upon them is precisely the same as if it 
had declared in direct terms that the 
legacies bequeathed by this will to these 
defendants should not go to them, but 
should descend to the heirs-nt-law of the 
testator, according to our law of descents. 
This it will not be pretended that they 
could do directly, and they had no more 
authority to do it indirectly, by making 
proceedings binding upon them which 
were void in law." See, to the same 
effect, Richards v. Rote, 68 Pa. St. 248; 
Pryor v. Downey, 60 Cal. 388, 19 Am. 
Rep. 656; Lane v. Nelson, 79 Pa. St. 
407; Shonk v. Brown, 61 Pa. St. 320; 
Spragg v. Shriver, 25 Pa. St. 282 ; Israel 
v. Arthur, 7 Col. 5. 

2 In Denny v. Mattoon, 2 Allen, 361, 
a judge in insolvency had made certain 
orders in a case pending in another juris- 
diction, and which the courts subsequently 
declared to be void. The legislature then 
passed an act declaring that they " are 
hereby confirmed, and the same shall be 
taken and deemed good and valid in law, 
to all intents and purposes whatsoever." 
On the question of the validity of this act 
the court says : " The precise question is, 
whether it can be held to operate so as to 
confer a jurisdiction over parties and pro- 
ceedings which it has been judicially de- 
termined did not exist, and give validity 
to acts and processes which have been 
adjudged void. The statement of this 
question seems to us to suggest the ob- 



152 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



Legislative Divorces. 

There is another class of cases in which it would seem that 
action ought to be referred exclusively to the judicial tribunals, 

which may serve to determine, in all 
cases, whether the limits of constitutional 
restraint are overstepped by the exercise 
by one branch of the government of pow- 
ers exclusively delegated to another, it 
certainly is practicable to apply to each 
case as it arises some test by which to 
ascertain whether this fundamental prin- 
ciple is violated. If, for example, the 
practical operation of a statute is to de- 
termine adversary suits pending between 
party and party, by substituting in place 
of the well-settled rules of law the arbi- 
trary will of the legislature, and thereby 
controlling the action of the tribunal be- 
fore which the suits are pending, no one 
can doubt that it would be an unauthor- 
ized act of legislation, because it directly 
infringes on the peculiar and appropriate 
functions of the judiciary. It is the ex- 
clusive province of courts of justice to 
apply established principles to cases 
within their jurisdiction, and to enforce 
their decisions by rendering judgments 
and executing them by suitable process. 
The legislature have no power to inter- 
fere with this jurisdiction in such manner 
as to change the decision of cases pend- 
ing before courts, or to impair or set aside 
their judgments, or to take cases out of 
the settled course of judicial proceeding. 
It is on this principle that it has been 
held that the legislature have no power to 
grant a new trial or direct a rehearing of 
a cause which has been once judicially 
settled. The right to a review, or to try 
anew facts which have been determined 
by a verdict or decree, depends on fixed 
and well-settled principles, which it is the 
duty of the court to apply in the exer- 
cise of a sound judgment and discretion. 
These cannot be regulated or governed 
by legislative action. Taylor v. Place, 
4 R. I. 324, 337 ; Lewis v. Webb, 3 Me. 
326; De Chastellux v. Fairchild, 15 Pa. 
St. 18. A fortiori, an act of the legisla- 
ture cannot set aside or amend final judg- 
ments or decrees." The court further 
consider the general subject at length, 
and adjudge the particular enactment 
under consideration void, both as an 



vious and decisive objection to any con- 
struction of the statute which would lead 
to such a conclusion. It would be a di- 
rect exercise by the legislature of a power 
in its nature clearly judicial, from the 
use of which it is expressly prohibited by 
the thirtieth article of the Declaration of 
Rights. The line which marks and sepa- 
rates judicial from legislative duties and 
functions is often indistinct and uncertain, 
and it is sometimes difficult to decide 
within which of the two classes a par- 
ticular subject falls. All statutes of a 
declaratory nature, which are designed to 
interpret or give a meaning to previous 
enactments, or to confirm the rights of 
parties either under their own contracts or 
growing out of the proceedings of courts 
or public bodies, which lack legal valid- 
ity, involve in a certain sense the exercise 
of a judicial power. They operate upon 
subjects which might properly come 
within the cognizance of the courts and 
form the basis of judicial consideration 
and judgment. But they may, neverthe- 
less, be supported as being within the 
legitimate sphere of legislative action, on 
the ground that they do not declare or 
determine, but only confirm rights ; that 
they give effect to the acts of parties ac- 
cording to their intent ; that they furnish 
new and more efficacious remedies, or 
create a more beneficial interest or tenure, 
or, by supplying defects and curing infor- 
malities in the proceedings of courts, or 
of public officers acting within the scope 
of their authority, they give effect to acts 
to which there was the express or implied 
assent of the parties interested. Statutes 
which are intended to accomplish such 
purposes do not necessarily invade the 
province, or directly interfere with the 
action of judicial tribunals. But if we 
adopt the broadest and most comprehen- 
sive view of the power of the legislature, 
we must place some limit beyond which 
the authority of the legislature cannot go 
without trenching on the clear and well- 
defined boundaries of judicial power." 
" Although it may be difficult, if not im- 
possible, to lay down any general rule 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 153 



but in respect to which the prevailing doctrine seems to be that 
the legislature has complete control unless specially restrained 
by the State constitution. The granting of divorces from the 
bonds of matrimony was not confided to the courts in England, 
and from the earliest days the Colonial and State legislatures 
in this country have assumed to possess the same power over 
the subject which was possessed by the Parliament, and from 
time to time they have passed special laws declaring a dissolu- 
tion of the bonds of matrimony in special cases. Now it is clear 
that "the question of divorce involves investigations which are 
properly of a judicial nature, and the jurisdiction over divorces 
ought to be confined exclusively to the judicial tribunals, under 
the limitations to be prescribed by law;" 1 and so strong is the 
general conviction of this fact, that the people in framing their 
constitutions, in a majority of the States, have positively for- 
bidden any such special laws. 2 



exercise of judicial authority, and also 
because, in declaring valid the void pro- 
ceedings in insolvency against the debtor, 
under which assignees had been ap- 
pointed, it took away from the debtor 
his property, "not by due process of law 
or the law of the land, but by an arbi- 
trary exercise of legislative will." See, 
further, Griffin's Executor v. Cunning- 
ham, 20 Grat. 109; State r. Doherty, 60 
Me. 504. In proceedings by tenants for 
life, the estate in remainder was ordered 
to be sold; there was at the time no au- 
thority for ordering such a sale. It was 
held to be void, and incapable of confir- 
mation. Maxwell v. Goetschius, 40 N. J. 
383,29 Am. Kep. 242. 

1 2 Kent, 106. See Levins v. Sleator, 
2 Greene (Iowa), 607. 

2 The following are constitutional pro- 
visions : Alabama: Divorces from the 
bonds of matrimony shall not be granted 
but in the cases by law provided for, and 
by suit in chancery ; but decrees in chan- 
cery for divorce shall be final, unless ap- 
pealed from in the manner prescribed by 
law, within three months from the date of 
the enrolment thereof. Arkansas: The 
General Assembly shall not have power 
to pass any bill of divorce, but may pre- 
scribe by law the manner in which such 
cases may be investigated in the courts of 
justice, and divorces granted. California: 
No divorce shall be granted by the legis- 
lature. The provision is the same or sim- 
ilar in Iowa, Indiana, Maryland, Michigan, 



Minnesota, Nevada, Nebraska, Oregon, 
New Jersey, Texas, and Wisconsin. Flor- 
ida : Divorces from the bonds of matri- 
mony shall not be allowed but by the 
judgment of a court, as shall be prescribed 
bylaw. Georgia: The Superior Court 
shall have exclusive jurisdiction in all 
cases of divorce, both total and partial. 
Illinois: The General Assembly shall not 
pass . . . special laws . . . for granting 
divorces. Kansas: And power to grant 
divorces is vested in the District Courts 
subject to regulations by law. Kentucky : 
The General Assembly shall have no 
power to grant divorces, . . . but by gen- 
eral laws shall confer such powers on the 
courts of justice. Louisiana: The Gen- 
eral Assembly shall not pass any local 
or special law on the following specified 
objects: . . . Granting divorces. Massa- 
chusetts: All cause of marriage, divorce, 
and alimony . . . shall be heard and de- 
termined by the Governor and Council, 
until the legislature shall by law make 
other provision. Mississippi: Divorces 
from the bonds of matrimony shall not 
be granted but in cases provided for by 
law, and by suit in chancery. Missouri: 
The General Assembly shall not pass any 
local or special law . . . granting divorces. 
In Colorado the provision is the same. 
New Hampshire : All causes of marriage, 
divorce, and alimony . . . shall be heard 
and tried by the Superior Court, until the 
legislature shall by law make other pro- 
vision. New York: . . . nor shall any 



154 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



Of the judicial decisions on the subject of legislative power 
over divorces there seem to be three classes of cases. The doc- 
trine of the first class seems to be this : The granting of a divorce 
may be either a legislative or a judicial act, according as the 
legislature shall refer its consideration to the courts, or reserve 
it to itself. The legislature has the same full control over the 
status of husband and wife which it possesses over the other 
domestic relations, and may permit or prohibit it, according to 
its own views of what is for the interest of the parties or the 
good of the public. In dissolving the relation, it proceeds upon 
such reasons as to it seem sufficient; and if inquiry is made into 
the facts of the past, it is no more than is needful when any 
change of the law is contemplated, with a view to the establish- 
ment of more salutary rules for the future. The inquiry, there- 
fore, is not judicial in its nature, and it is not essential that 
there be any particular finding of misconduct or unfitness in the 
parties. As in other cases of legislative action, the reasons or 



divorce be granted otherwise than by due 
judicial proceedings. North Carolina: The 
General Assembly shall have power to 
pass general laws regulating divorce and 
alimony, but shall not have power to grant 
a divorce or secure alimony in any par- 
ticular case. Ohio: The General Assem- 
bly shall grant no divorce nor exercise 
any judicial power, not herein expressly 
conferred. Pennsylvania : The legislature 
shall not have power to enact laws annul- 
ling the contract of marriage in any case 
where by law the courts of this Common- 
wealth are, or hereafter may be, em- 
powered to decree a divorce. Tennessee : 
The legislature shall have no power to 
grant divorces, but may authorize the 
courts of justice to grant them for such 
causes as may be specified by law ; but 
such laws shall be general and uniform 
in their operation throughout the State. 
Virginia: The legislature shall confer on 
the courts the power to grant divorces, 
. . . but shall not by special legislation 
grant relief in such cases. West Virginia : 
The Circuit Courts shall have power, 
under such general regulations as may be 
prescribed by law, to grant divorces, . . . 
but relief shall not be granted by special 
legislation in such cases. Under the Con- 
stitution of Michigan, it was held that, as 
the legislature was prohibited from grant- 
ing divorces, they could pass no special 
act authorizing the courts to divorce for a 



cause which was not a legal cause for 
divorce under the general laws. Teft v. 
Teft, 3 Mich. 67. See also Clark v. Clark, 
10 N. H. 380; Simonds v. Simonds, 103 
Mass. 572, 4 Am. Rep. 576. The case of 
White v. White, 105 Mass. 325, was pe- 
culiar. A woman procured a divorce from 
her husband, and by the law then in 
force he was prohibited from marrying 
again except upon leave procured from 
the court. He did marry again, however, 
and the legislature passed a special act to 
affirm this marriage. In pursuance of a 
requirement of the constitution, jurisdic- 
tion of all cases of marriage and divorce 
had previously been vested by law in the 
courts. Held, that this took from the 
legislature all power to act upon the sub- 
ject in special cases, and the attempt to 
validate the marriage was consequently 
ineffectual. That the legislature possesses 
authority to validate marriages and to 
give legitimacy to the children of invalid 
marriages, where the constitution has not 
taken it away, see Andrews v. Page, 3 
Heisk. 653 ; post, pp. 533, 534. ^Constitu- 
tional prohibition of legislative divorces 
does not make invalid a statute providing 
that a sentence to life imprisonment shall 
operate as absolute divorce. State v. 
Duket, 90 Wis. 272, 63 N. W. 83, 31 L.R. 
A. 515, 48 Atn. St. 928 ; and see note 
hereto in L. R. A. upon effect of senten'-e 
upon marriage relation.] 



OIL V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 155 

the motives of the legislature cannot be inquired into; the 
relation which the law permitted before is now forbidden, and 
the parties are absolved from the obligations growing out of that 
relation which continued so long as the relation existed, but 
which necessarily cease with its termination. Marriage is not 
a contract, but a status ; the parties cannot have vested rights of 
property in a domestic relation; therefore the legislative act 
does not come under condemnation as depriving parties of rights 
contrary to the law of the land, but, as in other cases within the 
scope of the legislative authority, the legislative will must be 
regarded as sufficient reason for the rule which it promulgates. 1 



1 The leading case on this subject is 
Starr v. Pease, 8 Conn. 541. On the 
question whether a divorce is necessarily 
a judicial act, the court say : " A further 
objection is urged against this act ; viz., 
that by the new constitution of 1818, 
there is an entire separation of the legis- 
lative and judicial departments, and that 
the legislature can now pass no act or 
resolution not clearly warranted by that 
constitution ; that the constitution is a 
grant of power, and not a limitation of 
powers already possessed ; and, in short, 
that there is no reserved power in the 
legislature since the adoption of this con- 
stitution. Precisely the opposite of this 
is true. From the settlement of the State 
there have been certain fundamental rules 
by' which power has been exercised. 
These rules were embodied in an instru- 
ment called by some a constitution, by 
others a charter. All agree that it was 
the first constitution ever made in Con- 
necticut, and made, too, by the people 
themselves. It gave very extensive pow- 
ers to the legislature, and left too much 
(for it left everything almost) to their 
will. The constitution of 1818 proposed 
to, and in fact did, limit that will. It 
adopted certain general principles by a 
preamble called a Declaration of Rights ; 
provided for the election and appoint- 
ment of certain organs of the government, 
such as the legislative, executive, and 
judicial departments ; and imposed upon 
them certain restraints. It found the State 
sovereign and independent, with a legisla- 
tive power capable of making all laws 
necessary for the good of the people, not 
forbidden by the Constitution of the 
United States, nor opposed to the sound 
maxims of legislation ; and it left them 



in the same condition, except so far as 
limitations were provided. There is now 
and has been a law in force on the sub- 
ject of divorces. The law was passed one 
hundred and thirty years ago. It pro- 
vides for divorces a vincufo matrimonii in 
four cases; viz., adultery, fraudulent con- 
tract, wilful desertion, and seven years' 
absence unheard of. The law has re- 
mained in substance the same as it was 
when enacted in 1667. During all this 
period the legislature has interfered like 
the Parliament of Great Britain, and 
passed spectal acts of divorce a vinculo 
matrimonii; and at almost every session 
since the Constitution of the United 
States went into operation, now forty-two 
years, and for the thirteen years of the 
existence of the Constitution of Connec- 
ticut, such acts have been, in multiplied 
cases, passed and sanctioned by the con- 
stituted authorities of our State. We are 
not at liberty to inquire into the wisdom 
of our existing law on this subject; nor 
into the expediency of such frequent in- 
terference by the legislature. We can 
only inquire into the constitutionality of 
the act under consideration. The power 
is not prohibited either by the Constitu- 
tion of the United States or by that of 
this State. In view of the appalling con- 
sequences of declaring the general law of 
the State or the repeated acts of our legis- 
lature unconstitutional and void, conse- 
quences easily conceived, but not easily 
expressed, such as bastardizing the is- 
sue and subjecting the parties to punish- 
ment for adultery, the court should 
come to the result only on a solemn con- 
viction that their oaths of office and these 
constitutions imperiously demand it. Feel- 
ing myself no such conviction, I cannot 



156 CONSTITUTIONAL LIMITATIONS. [CH. V. 

The second class of cases to which we have alluded hold that 
divorce is a judicial act in those cases upon which the general 
laws confer on the courts power to adjudicate; and that conse- 
quently in those cases the legislature cannot pass special laws, 
but its full control over the relation of marriage will leave it at 
liberty to grant divorces in other cases, for such causes as shall 
appear to its wisdom to justify them. 1 

A third class of cases deny altogether the authority of these 
special legislative enactments, and declare the act of divorce to 
be in its nature judicial, and not properly within the province 
of the legislative power. 2 The most of these decisions, however, 
lay more or less stress upon clauses in the constitutions other 
than those which in general terms separate the legislative and 
judicial functions, and some of them would perhaps have been 
differently decided but for those other clauses. But it is safe to 
say that the general sentiment in the legal profession is against 
the rightfulness of special legislative divorces ; and it is believed 
that, if the question could originally have been considered by 
the courts, unembarrassed by any considerations of long acquies- 
cence, and of the serious consequences which must result from 
affirming their unlawfulness, after so many had been granted 
and new relations formed, it is highly probable that these enact- 
ments would have been held to be usurpations of judicial author- 
pronounce the act void." Per Daggett, while suit for divorce was pending in a 
J. ; Hosmer, Ch. J., and Bissell, J., con- court of competent jurisdiction would 
curring. Peters, J., dissented. Upon the not affect the rights to property of the 
same subject see Crane v. Meginnis, 1 G. other, growing out of the relation. Gaines 
& J. 463 ; Wright v. Wright, 2 Md. 429 ; v. Gaines, 9 B. Monr. 295. A statute per- 
Gaines v. Gaines, 9 B. Monr. 295; Cabell mitting divorces for offences committed 
v. Cabell, 1 Met. (Ky.) 319; Dickson v. before its passage is not an ex post facto 
Dickson, 1 Yerg. 110; Melizet's Appeal, law in the constitutional sense. Jones v. 
17 Pa. St. 449; Cronise v. Cronise, 64 Jones, 2 Overton, 2, 6 Am. Dec. 645. 
Pa. St. 255 ; Adams v. Palmer, 51 Me. 2 Brigham v. Miller, 17 Ohio, 445 ; 
480 ; Townsend v. Griffin, 4 Harr. 440 ; Clark i-. Clark, 10 N. H. 380 : Ponder v. 
Noel v. Ewing, 9 Ind. 37 ; and the ex- Graham, 4 Fla. 23 ; State v. Fry, 4 Mo. 
animation of the whole subject by Mr. 120; Bryson v. Campbell, 12 Mo. 498; 
Bishop, in his work on Marriage and Bryson v. Bryson, 17 Mo. 690 ; Same 
Divorce. A territorial legislature having v. Same, 44 Mo. 232. See also Jones 
power covering all rightful subjects of v. Jones, 12 Pa. St. 350, 354. Under 
legislation could grant a divorce. May- the Constitution of Massachusetts, the 
nard v. Hill, 125 U. S. 190, 8 Sup. Ct. power of the legislature to grant di- 
Rep. 723. vorces is denied. Sparha wk v. Sparhawk, 

1 Levins v. Sleator, 2 Greene (Iowa), 116 Mass. 315. See clause in constitu- 
604; Opinions of Judges, 16 Me. 479; tion, ante, p. 163, note 2. Where a court 
Adams v. Palmer, 51 Me. 480. See also is given appellate jurisdiction in a/I cases, 
Townsend v. Griffin, 4 Harr. 440. In a it is not competent by statute to forbid 
well-reasoned case in Kentucky, it was its reversing a decree of divorce. Tier- 
held that a legislative divorce obtained ney v. Tierney, 1 Wash. Ter. 508. See 
on the application of one of the parties Nichols v. Griffin, 1 Wash. Ter 374. 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 157 

ity, and we should have been spared the necessity for the special 
constitutional provisions which have since been introduced. 
Fortunately these provisions render the question now discussed 
of little practical importance; at the same time that they refer 
the decision upon applications for divorce to those tribunals 
which must proceed upon inquiry, and cannot condemn without 
a hearing. 1 

The force of a legislative divorce must in any case be confined 
to a dissolution of the relation; it can only be justified on the 
ground that it merely lays down a rule of conduct for the parties 
to observe towards each other for the future. It cannot inquire 
into the past, with a view to punish the parties for their offences 
against the marriage relation, except so far as the divorce itself 
can be regarded as a punishment. It cannot order the payment 
of alimony, for that would be a judgment; 2 it cannot adjudge 
upon conflicting claims to property between the parties, but it 
must leave all questions of this character to the courts. Those 
rights of property which depend upon the continued existence of 
the relation will be terminated by the dissolution, but only as 
in any other case rights in the future may be incidentally 
affected by a change in the law. 3 

Legislative Encroachments upon Executive Power. 

If it is difficult to point out the precise boundary which sepa- 
rates legislative from judicial duties, it is still more difficult 
to discriminate, in particular cases, between what is properly 
legislative and what is properly executive duty. The authority 
that makes the laws has large discretion in determining the 
means through which they shall be executed; and the perform- 

1 If marriage is a matter of right, then ful powers of legislation " which our con- 
it would seem that any particular mar- stitutions confer upon the legislative 
riage that parties might lawfully form department, a relation essential to organ- 
they must have a lawful right to continue ized civil society might be abrogated 
in, unless by misbehavior they subject entirely. Single legislative divorces are 
themselves to a forfeiture of the right, but single steps towards this barbarism 
And if the legislature can annul the rela- which the application of the same prin- 
tion in one case, without any finding that ciple to every individual case, by a gen- 
a breach of the marriage contract has eral law, would necessarily bring upon us. 
been committed, then it would seem that See what is said by the Supreme Court 
they might annul it in every case, and of Missouri in Bryson v. Bryson, 17 Mo. 
even prohibit all parties from entering 590, 594. 

into the same relation in the future. The 2 Crane v. Meginnis, 1 G. & J. 463; 

recognition of a full and complete control Potter's Dwarris on Statutes, 486; post, 

of the relation in the legislature, to be p. 684. note, 

exercised at its will, leads inevitably to 8 Starr v. Pease, 8 Conn. 541. 
this conclusion ; so that, under the " right- 



158 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



ance of many duties which they may provide for by law they 
may refer either to the chief executive of the State, or, at their 
option, to any other executive or ministerial officer, or even to 
a person specially named for the duty. 1 What can be definitely 
said on this subject is this: That such powers as are specially 
conferred by the constitution upon the governor, or upon any 
other specified officer, the legislature cannot require or authorize 
to be performed by any other officer or authority; and from 
those duties which the constitution requires of him he cannot 
be excused bylaw. 2 But other powers or duties the executive 



1 This is affirmed in the case of Bridges 
r. Shallcross, 6 W. Va. 662. The consti- 
tution of that State provides that the 
governor shall nominate, and by and with 
the advice and consent of the Senate 
appoint, all officers whose offices are es- 
tablished by the constitution or shall be 
created by law, and whose appointment 
or election is not otherwise provided for, 
and that no such officer shall be appointed 
or elected by the legislature. The court 
decided that this did not preclude the 
legislature from creating a board of 
public works of which the State officers 
should be ex officio the members. The 
legislature may regulate appointment to 
statutory offices : People v. Osborne, 7 Col. 
6U5; may provide a board of civil service 
commissioners to prescribe qualifications 
of all officers not provided for by the 
constitution : Opinion of Justices, 138 
Mass. 601. p?or other cases upon merit 
system in civil service, see People v. Kip- 
ley, 171 111. 44, 49 N. E. 229, 41 L. R. A. 
775 ; Chittenden v. Wurster, 152 N. Y. 
345, 46 N. E. 857, 37 L. R. A. 809 ; Re 
Keymer, 148 N. Y. 219, 42 N. E. 667, 
35 L. R. A. 447 ; Opinion of Justices, 
166 Mass. 589, 44 N. E. 625, 34 L. R. A. 
58 ; Newcomb v. Indianapolis, 141 Ind. 
451, 40 N. E. 919, 28 L. R. A. 732; 
Rogers v. Buffalo, 123 N. Y. 173, 25 
N. E. 274, 9 L. R. A. 579 ; Neumeyer v. 

Krakel, - Ky. , 62 S. W. 518 (April 

25, 1901) ; People v. Mosher, 163 N. Y. 
32, 67 N. E. 88, 79 Am. St. 652 ; Peo- 
ple v. Roberts, 148 N. Y. 360, 42 N. E. 
1082, 31 L. R. A. 399.] May appoint a 
State board, if constitution does not ex- 
pressly empower the governor to do so. 
People v. Freeman, 80 Cal. 233, 22 Pac. 
173. See Hovey v. State, 119 Ind. 386, 
21 N. E. 890; Biggs v. McBride, 17 Oreg. 
640, 21 Pac. 878 ; State v. Covington, 29 



Ohio St. 102. [^Appointment of police 
officers cannot be intrusted to a bipartisan 
board, elected half by one party in city 
council and half by another. Rathbone 
v. Wirth, 150 N. Y. 459, 45 N. E. 15, 34 
L. R. A. 408. But a provision that not 
more than two of the three members of a 
civil service commission shall be of the 
same political party is valid. Rogers v. 
Buffalo, 123 N. Y. 173, 25 N. E. 274, 9 
L. R. A. 679.] 

2 Attorney-General v. Brown, 1 Wis. 
513. " Whatever power or duty is ex- 
pressly given to, or imposed upon, the 
executive department, is altogether free 
from the interference of the other 
branches of the government. Especially 
is this the case where the subject is com- 
mitted to the discretion of the chief exec- 
utive officer, either by the constitution 
or by the laws. So long as the power is 
vested in him, it is to be by him exercised, 
and no other branch of the government 
can control its exercise." Under the Con- 
stitution of Ohio, which forbids the exer- 
cise of any appointing power by the legis- 
lature, except as therein authorized, it 
was held that the legislature could not, 
by law, constitute certain designated per- 
sons a State board, with power to appoint 
commissioners of the State House, and 
directors of the penitentiary, and to re- 
move such directors for cause. State v. 
Kennon, 7 Ohio St. 546. By the Indiana 
Constitution all officers whose appoint- 
ment is not otherwise provided for, shall 
be chosen in such manner as shall be pre- 
scribed by law. The power to ordain the 
"manner" does not give the legislature 
power to appoint. State v. Denny, 118 
Ind. 382, 21 N. E. 252, 274, 4 L. R. A. 
79; Evansville v. State, 118 Ind. 426, 21 
N. E. 267, 4 L. R. A. 93. And see Davis 
v. State, 7 Md. 151 ; also cases referred 



CH. V.J POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 159 



cannot exercise or assume except by legislative authority, and 



to in preceding note. [O'Connor v. Fond 
du Lac, 109 Wis. 253, 85 N. W. 327. 
The power of appointment to a particular 
office may be vested in the State geolo- 
gist. State v. Hyde, 1^9 Ind. 296, 28 N. E. 
186, 13 L. R. A. 79. The governor's power 
of appointment cannot be indirectly taken 
away ; as by abolishing the office or 
offices and creating another and attaching 
to it the duties of the office or offices abol- 
ished. Johnson v. State, 59 N. J. L. 535, 
37 Atl. 949, 38 L. R. A. 373, 39 Atl. 646.] 
As to what are public officers, see State 
;. Stanley, 66 N. C. 59, 8 Am. Rep. 488. 
An appointment to office was said, in Tay- 
lor v. Commonwealth, 3 J. J. Marsh. 401, 
to be intrinsically an executive act. In 
a certain sense this is doubtless so, but it 
would not follow that the legislature could 
exercise no appointing power, or could 
confer none on others than the chief exec- 
utive of the State. Where the constitu- 
tion contains no negative words to limit 
the legislative authority in this regard, the 
legislature in enacting a law must decide 
for itself what are the suitable, conven- 
ient, or necessary agencies for its execu- 
tion, and the authority of the executive 
must be limited to taking care that the 
law is executed by such agencies. See 
Baltimore v. State, 15 Md. 376; [State v. 
Henderson, 4 Wyo. 535, 35 Pac. 517, 22 
L. R. A. 751; Fox v. McDonald, 101 Ala. 
61, 13 So. 416, 21 L. R. A. 529, 46 Am. 
St. 98 ; State v. George, 22 Oreg. 142, 29 
Pac. 356, 16 L. R. A. 737, 29 Am. St. 586. 
That power to appoint CityCommissioners 
may be given to circuit judges. See Terre 
Haute v. Evansville and T. H. Ry. Co., 
149 Ind. 174, 46 N. E. 77, 37 L. R. A. 189 ; 
and see note 16 L. R. A. 737, on the con- 
stitutional power of courts or judges to 
appoint officers. With regard to require- 
ments of merit in appointees and compet- 
itive examinations for the ascertainment 
thereof, see People v. Kipley, 171 111. 44, 
49 N. E. 229, 41 L. R. A. 775; Chittenden 
v. Wurster, 152 N. Y. 345, 46 N. E. 857, 
37 L. R. A. 809 ; Re Keymer, 148 N. Y. 
219, 42 N. E. 667, 35 L. R. A. 447 ; Opin- 
ion of Justices, 166 Mass. 589, 44 N. E. 
625, 34 L. R. A. 58; People v. Roberts, 
148 N. Y. 360, 42 N. E. 1082, 31 L. R. A. 
399; Newcomb w. Indianapolis, 141 Ind. 
451, 40 N. E. 919, 28 L. R. A. 732; Rogers 
v. Buffalo, 123 N. Y. 173, 25 N. E. 274, 



9 L. R. A. 579; Neumeyer v. Krakel, 

Ky. , 62 S. W. 518; People v. 

Mosher, 163 N. Y. 32, 57 N. E. 88, 79 Am. 
St. 552. The mayor of a city may be em- 
powered to appoint the principal exec- 
utive officers thereof. Datz v. Cleveland, 
52 N. J. L. 188, 19 Atl. 17, 7 L. R. A. 431. 
For other cases on appointing power, see 
State v. Boucher, 3 N. D. 389, 56 N. W. 
142, 21 L. R. A. 539.] 

Where the governor has power to re- 
move an officer for neglect of duty, he is 
the sole judge whether the duty has been 
neglected. State v. Doherty, 25 La. Ann. 
119, 13 Am. Rep. 131 ; [State v. Johnson, 
30 Fla. 433, 11 So. 845, 18 L. R. A. 410; 
and see Trainor v. Wayne Co. Auditors, 
89 Mich. 162, 50 N. W. 809, 15 L. R. A. 
95, and note on power of summary re- 
moval.] The courts cannot review his 
action if it is taken after a hearing: State 
v. Hawkins, 44 Ohio St. 98, 5 N. E. 228; 
but he must afford an opportunity for 
defence. Dullam v. Willson, 53 Mich. 
392, 19 N. W. 112; [State v. Johnson, 30 
Fla. 433, 11 So. 845, 18 L. R. A. 410; 
State v. Smith, 35 Neb. 13, 52 N. W. 700, 
16 L. R. A. 791 ; Biggs v. McBride, 17 
Oreg. 640, 21 Pac. 878, 5 L. R. A. 115.] 
Contra, unless the right is expressly 
secured to the officer. Donahue v. Will 
Co., 100 111. 94, and cases cited. [For 
a case of removal for gross carelessness 
in declaring the result of a vote upon a 
constitutional amendment, see Attorney- 
General v. Jochim, 99 Mich. 358, 58 N. W. 
611, 23 L. R. A. 699, 41 Am. St. 606. Pro- 
vision for impeachment or removal does 
not prevent virtual removal by legislature 
through statute abolishing the office and 
creating another with same duties and 
powers. State v. Hyde, 129 Ind. 296, 28 N. 
E. 186, 13 L. R. A. 79. Power of removal 
cannot be conferred on court. Gordon r. 
Moores, 61 Neb. 345, 85 N. W. 298.] 

If the governor has power to appoint 
with the consent of Senate, and to re- 
move, he may remove without such con- 
sent. Lane v. Com., 103 Pa. St. 481 ; 
Harman v. Harwood, 58 Md. 1. See, MS 
to discretionary powers, ante, pp. 73-75, 
notes. 

The executive, it has been decided, has 
power to pardon for contempt of court. 
State v. Sauvinet, 24 La. Ann. 119, 13 Am. 
Rep. 115; [Sharp v. State, 102 Tenn. 



160 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



the power which in its discretion it confers it may also in its 
discretion withhold, or confide to other hands. 1 Whether in 
those cases where power is given by the constitution to the gov- 
ernor, the legislature have the same authority to make rules for 
the exercise of the power that they have to make rules to govern 
the proceedings in the courts, may perhaps be a question. 2 It 



9, 49 S. W. 752, 43 L. R. A. 788, 73 
Am. St. 851.] A general power to par- 
don may be exercised before as well 
as after conviction. Lapeyre v. United 
States, 17 Wall. 191; Dominick v. Bow- 
doin, 44 Ga. 357 ; Grubb v. Bullock, 44 Ga. 
379; [Terr, v. Richardson, 9 Okla. 579, 
60 Pac. 244, 49 L. R. A. 440.] The 
President's power to pardon does not ex- 
tend to the restoration of property which 
has been judicially forfeited. Knote v. 
United States, 10 Ct. of Cl. 397, and 95 
U. S. 149; Osborn v. United States, 91 
U. S. 474. The pardon may be granted 
by general proclamation. Carlisle v. 
United States, 16 Wall. 147; Lapeyre 
v. United States, 17 Wall. 191. The de- 
livery of a pardon to the prison warden, 
makes it operative. Ex parte Powell, 73 
Ala. 517. One receiving a full pardon 
from the President cannot afterwards be 
required by law to establish loyalty as a 
condition to the assertion of legal rights. 
Carlisle v. United States, 16 Wall. 147. 
Nor be prosecuted in a civil action for 
the same acts for which he is pardoned. 
United States v. McKee, 4 Dill. 128. 
Pardon removes all disabilities resulting 
from conviction, and may be granted 
after sentence executed. State v. Foley, 
15 Nev. 64, 37 Am. Rep. 458 ; Edwards 
v. Com., 78 Va. 39; State v. Dodson, 16 
S. C. 453; [State v. Martin, 59 Ohio, 
212, 52 N. E. 188, 43 L. R. A. 94, -69 Am. 
St. 762.] But a mere executive order 
to discharge from custody is not such a 
pardon. State v. Kirschner, 23 Mo. App. 
349. It does not release from the obliga- 
tion to pay costs of the prosecution. In 
re Boyd, 34 Kan. 570, 9 Pac. 240; Smith 
v. State, 6 Lea, 637. [Upon invalidity 
of legislative pardon, see Singleton r. 
State, 38 Fla. 297, 21 So. 21, 34 L. R. A. 
251, 50 Am. St. 177, and note thereto in 
L. II. A. Where hoard of pardons has 
only advisory power, the governor's par- 
doning power is in nowise infringed. 
Rich v. Chamberlain, 104 Mich. 436, 62 
N. W. 584, 27 L. R. A. 573. Statute 



authorizing sentence of prisoner for an 
indefinite term not less than the minimum 
prescribed by law nor greater than tlie 
maximum with authority to the board of 
prison control to release on parol after 
expiration of minimum period amd to 
recommit upon violation of parol is void 
as infringing upon governor's pardoning 
power. People v. Cummings, 88 Mich. 
249, 50 N. W. 310, 14 L. R. A. 285, and 
note. Sentence may be suspended after 
conviction, and such suspension may be 
withdrawn at any time. It does not 
encroach upon governor's power to grant 
pardons and reprieves. People v. Mon- 
roe Co. Ct., 141 N. Y. 288, 36 N. E. 386, 
23 L. R. A. 856.] 

1 "In deciding this question [as to the 
authority of the governor], recurrence 
must be had to the constitution. That 
furnishes the only rule by which the 
court can be governed. That is the char- 
ter of the governor's authority. All the 
powers delegated to him hv or in accord- 
ance with that instrument, he is entitled 
to exercise, and no others. The constitu- 
tion is a limitation upon the powers of 
the legislative department of the govern- 
ment, but it is to be regarded as a grant 
of powers to the other departments. 
Neither the executive nor the judiciary, 
therefore, can exercise any authority or 
power except such as is clearly granted 
by the constitution." Field v. People, 8 
111 79, 80. 

2 Whether the legislature can consti- 
tutionally remit a fine, when the pardon- 
ing power is vested in the governor by 
the constitution, has been made a ques- 
tion ; and the cases of Haley v. Clarke, 26 
Ala. 439, and People v. Bircham, 12 Cal. 
60, are opposed to each other upon the 
point. If the fine is payable to the State, 
perhaps the legislature should be consid- 
ered as having the same right to dis- 
charge it that they would have to release 
any other debtor to the State from his 
obligation. In Indiana the Supreme 
Court cannot be invested with power to 



CH. V.] POWERS EXERCISED BY LEGISLATIVE DEPARTMENT. 161 



would seem that this must depend generally upon the nature of 
the power, and upon the question whether the constitution, in 
conferring it, has furnished a sufficient rule for its exercise. 
Where complete power to pardon is conferred upon the execu- 
tive, it may be doubted if the legislature can impose restrictions 
under the name of rules or regulations ; but where the governor 
is made cornmander-in-chief of the military forces of the State, 
it is obvious that his authority must be exercised under such 
proper rules as the legislature may prescribe, because the mili- 
tary forces are themselves under the control of the legislature, 
and military law is prescribed by that department. There 
would be this clear limitation upon the power of the legislature 



grant reprieves. Butler v. State, 97 Ind. 
373. The Secretary of the Treasury 
may remit penalties for breach of reve- 
nue laws. The Laura, 114 U. S. 411, 
6 Sup. Ct. Rep. 881. In Michigan a judge 
cannot by suspending sentence indefi- 
nitely practically pardon a prisoner. 
People r. Brown, 54 Mich. 15, 19 N. W. 
671. An act allowing a prisoner to go on 
parol, but in legal control of prison man- 
agers and subject to recall, is valid. 
State v. Peters, 43 Ohio St. 629. 4 N. E. 
81. In Morgan v. Buffington, 21 Mo. 549, 
it was held that the State auditor was 
not obliged to accept as conclusive the 
certificate from the Speaker of the House 
as to the sum due a member of the House 
for attendance upon it, but that he might 
lawfully inquire whether the amount had 
been actually earned by attendance or 
not. The legislative rule, therefore, can- 
not go to the extent of compelling an ex- 
ecutive officer to do something else than 
his duty, under any pretence of regula- 
tion. The power to pardon offenders is 
vested by the several State constitutions 
in the governor. It is not, however, a 
power which necessarily inheres in the 
executive. State v. Dunning, 9 Ind. 20. 
And several of the State constitutions 
have provided that it shall be exercised 
under such regulations as shall be pre- 
scribed by law. There are provisions 
more or less broad to this purport in those 
of Kansas, Florida, Alabama, Arkansas, 
Texas, Mississippi, Oregon, Indiana,Iowa, 
and Virginia. In State v. Dunning, 9 Ind. 
20, an act of the legislature requiring the 
applicant for the remission of a fine or for- 
feiture to forward to the governor, with 
his application, the opinion of certain 



county officers as to the propriety of the 
remission, was sustained as an act within 
the power conferred by the constitution 
upon the legislature to prescribe regula- 
tions in these cases. And see Branham 
v. Lange, 16 Ind. 497. The power to re- 
prieve is not included in the power to 
pardon. Ex parte Howard, 17 N. H. 545. 
Contra, Ex parte Fleming, 60 Miss. 910. 
It has been decided that to give parties 
who have been convicted and fined the 
benefit of the insolvent laws is not an 
exercise of the pardoning power. Ex 
parte Scott, 19 Ohio St. 581. And where 
the constitution provided that " In all 
criminal and penal cases, except those 
of treason and impeachment, [the gover- 
nor] shall have power to grant pardons 
after conviction, and remit fines and for- 
feitures," &c., it was held that this did 
not preclude the legislature from passing 
an act of pardon and amnesty for parties 
liable to prosecution, but not yet com- 
victed. State r. Nichols, 26 Ark. 74, 
7 Am. Rep. 600. An act approved by 
the governor vacating a conviction op T- 
ates as a pardon. People v. Stewart, 
1 Idaho, 546. Pardons may be made con- 
ditional, and forfeited if the condition is 
not observed. State v. Smith, 1 Bailey, 
283; Lee v. Murphy, 22 Gratt. 789; Re 
lluhl, 6 Sawyer, 186; Kennedy's Case, 
135 Mass. 48 ; Ex parte Marks, 64 Cal. 
29, 28 Pac. 109. But a pardon obtained 
by fraud is held conclusive, though after- 
ward declared null by the governor. 
Knapp v. Thomas, 39 Ohio St. 377. A 
pardon does not relieve from forfeiture 
of bail bond. Dale r. Commonwealth, 101 
Ky. 612, 42 S. W. 93, 38 L. R. A. 808.] 



11 



162 



CONSTITUTIONAL LIMITATIONS. 



[CH. V. 



to prescribe rules for the executive department ; that they must 
not be such as, under pretence of regulation, divest the executive 
of, or preclude his exercising, any of his constitutional preroga- 
tives or powers. Those matters which the constitution specifi- 
cally confides to him the legislature cannot directly or indirectly 
take from his control. And on the other hand the legislature 
cannot confer upon him judicial authority; such as the authority 
to set aside the registration of voters in a municipality; 1 or 
clothe him with any authority, not executive in its nature, which 
the legislature itself, under the constitution, is restricted from 
exercising. 3 

It may be proper to say here, that the executive, in the proper 
discharge of his duties under the constitution, is as independent 
of the courts as he is of the legislature. 3 



1 State v. Staten, 6 Cold. 233. 

2 Smith v. Norment, 5 Yerg 271. 

8 It has been a disputed question 
whether the writ of mandamus will lie 
to compel the performance of executive 
duties. In the following cases the power 
has either been expressly affirmed, or it 
has been exercised without being ques- 
tioned. State v. Moffitt, 5 Ohio, 358; 
State v. Governor, 5 Ohio St. 529 ; Coltin 
v. Ellis,? Jones (N. C.), 545; Chamberlain 
v. Sibley, 4 Minn. 309; Magruder v. Gov- 
ernor, 25 Md. 173 ; Groome v. Gwinn, 43 
Md. 572; Tennessee, c. R. R. Co. v. 
Moore, 36 Ala. 371; Middleton v. Lowe, 
30 Cal. 596; Harpending v. Haight, 39 
Cal. 189, 2 Am. Rep. 433; Chumasero 
v. Potts, 2 Mont. 244 ; Martin r. Ingham, 
38 Kan. 641, 17 Pac. 162. See Hatch v. 
Stoneman, 66 Cal. 632, 6 Pac. 734. In 
the following cases the power has been 
denied : Hawkins v. Governor, 1 Ark. 
570; Low v. Towns, 8 Ga. 360; State v. 
Kirk wood, 14 Iowa, 162; Dennett, Peti- 
tioner, 32 Me. 510; People v. Bissell, 19 
111. 229; People v. Yates, 40 111. 126; 
People v. Cullom, 100 111. 472; State v. 
Governor, 25 N. J. 331 ; Mauran v. Smith, 
8 U. I. 192; State v. Warmoth, 22 La. 
Ann. 1, 2 Am. Rep. 712 ; Same v. Same, 
24 La. Ann. 351, 13 Am. Rep. 126; Peo- 
ple v. Governor, 29 Mich. 320, 18 Am. Rep. 
89 ; State v. Governor, 39 Mo. 388 ; Vicks- 
burg & M. R. R. Co. v. Lowry, 61 Miss. 
102; [Territorial Ins. Asylum v. Walfley, 
Ariz., 22 Pac. 383 (8 July, 1889), 8 L. 
R. A. 188; Bates v. Taylor, 3 Pick. (Tenn.) 
319, 11 S. W. 266; People v. Morton, 156 



N. Y. 136, 50 N. E. 791, 66 Am. St. 547. 
This last was a case where it was at- 
tempted to compel action of governor as 
member of board of trustees ex officio. 
See also State ex rel. v. Nash, 66 Ohio, 
612, 64 N. E. 658.] Nor can he be en- 
joined from acting. Smith v. Myers, 
109 Ind. 1; Bates v. Taylor, 87 Tenn. 
319. See Lacy v. Martin, 39 Kan. 703, 
18 Pac. 957 ; Kilpatrick v. Smith, 77 Va. 
347. In Hartranft's Appeal, 85 Pa. St. 
433, 27 Am. Rep. 667, it was decided that 
the governor was not subject to the sub- 
poena of the grand jury. In Minnesota 
it seems that officers of the executive 
department are exempt from judicial 
process even in the case of ministerial 
duties. Rice r. Austin, 19 Minn. 103; 
County Treasurer v. Dike, 20 Minn. 
363 ; Western R. R, Co. v. De Graff, 27 
Minn. 1, 6 N. W. 341 ; Stater. Whitcomb, 
28 Minn. 60. FJSee also State v. Stone, 
120 Mo. 428, 25 S. W. 376, 23 L. R. A. 
194,41 Am. St. 705, and Frost v. Thomas, 
26 Col. 222, 56 Pac. 899, 77 Am. St. 259. 
That court will not interfere with the 
exercise of discretion on the part of a 
railroad commission where such discre- 
tion is authorized by law, see Louisville 
& N. R. Co. v. Commonwealth, 104 Ky. 
226, 46 S. W. 707, 47 S. W. 698, 48 S